Summer 1988 - NSW Bar Association

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Published by: NSW Bar Association
174 Phillip Street, Sydney NSW 2000
In this issue
Editor: R.S. McColl
Bar Council Committee Reports:
Prepared by the members of
each committee respectively.
Annual Report: Compiled by the
Registrar of the Bar Association, Capt.
Duchesne, Kerry Taylor and the staff
of the Association.
Produced by: The Business Link
7 Gunjulla Place, Avalon NSW 2107
Printed by:
Robert Burton Printers Pty. Ltd.
63 Carlingford Street
Sefton NSW 2162
Advertising:
Contact Ross Wishart (02) 918.9288
Photographs: Chief Justice Gleeson by D.A. Wheelahan; Bar's Art
Collection - by R.S. McColl
Views expressed by contributors to
Bar News are not necessarily those of
the Bar Association of New South
Wales.
Contributions are welcome, and
should be addressed to the Editor,
R.S.McColl, 7th floor, Wentworth
Chambers, 180 Phillip Street, Sydney
NSW 2000. The deadline for the
next issue is February 17, 1989.
Bar Notes
Solicitor Prosecutors ..............................................................................
Funding of Courts Must Keep Up with the Pace of Litigation ..............
Time and Motion in Court .....................................................................
N.S.W. Bar Association v. Kalaf ...........................................................
2
2
2
2
From the President ................................................................................
3
Report of the Marre Committee on the Future
of the Legal Profession in the United Kingdom .................................
4
Chief Justice Gleeson ...........................................................................
5
The Artful Bar .......................................................................................
7
N.S.W. Bar Association v. Maddocks ..................................................
12
Court Delays ...........................................................................................
13
Reports from Bar Council Committees ...............................................
16
The Role of the Judiciary ......................................................................
21
Criminal Liability of Professional Advisers ........................................
23
Motions and Mentions ...........................................................................
30
Trial by Jury ..........................................................................................
31
Courtly Language ..................................................................................
34
This Sporting Life .................................................................................
36
COVER: Chief Justice Gleeson - photographed by D.A. Wheelahan
ISSN 0817-0002
NSW Bar Association
Bar News, Summer 1988 - 1
Bar Notes
Solicitor Prosecutors
Following upon a complaint from a member, the Bar
Council referred to the Law Society the question whether a
solicitor who acted in a prosecution as an advocate should be
bound by anile similar to Rule 57A of the Bar Association Rules.
The Law Society has now informed the Bar Council that it has
resolved to adopt the following ruling based upon the Bar
Association's Rules.
"A solicitor appearing for the prosecution should not act
as an advocate in order to attempt to persuade a court to impose
a harsh sentence, but nevertheless should be prepared to correct
any error or mis-statement made by Counsel for the defence,
refer the court to any relevant authority which has bearing on the
appropriate penalty and generally to assist the court to avoid
appealable error."
The ruling is to be brought to the attention of the members
of the Law Society by means of publication in the Law Society
Journal.
Funding of Courts Must Keep Up with the
Pace of Litigation
In his opening address to the Australian Institute of
Judicial Administration Seminar on 3 September, 1988 His
Honour Sir Anthony Mason A.C., K.B.E., Chief Justice of the
High Court of Australia made many important points including:
* That expenditure on law and order must keep up with the
volume and complexity of litigation rather than just with such
indicators as the population increase and GNP.
* Denying law enforcement agencies adequate resources
for the investigation of and preparation of cases coming before
the criminal courts means delay with consequential inefficient
use of the court system and leads to a waste of facilities and
resources as wellas the potential of permanent stay of proceedings
on the basis of such dely.
*
That a suitable model for the administration of court
systems had to be evolved.
*
That greater participation by judges was inevitable in
order to achieve more efficient court administration.
* That neither the judiciary nor the legal profession could
legitimately expect the executive to provide whatever level of
funding and administration was necessary to provide courts and
facilities without the executive concerning itself about the
efficiency of the court system.
2- Bar News, Summer 1988
* That the judiciary and the legal profession could not
justifiably criticise executive funding and administration of the
court system unless they were prepared to participate in
formulating and implementing strategies and procedures to
ensure efficiency without impairing the administration ofjustice.
U
Time and Motion in Court
On October 5 the Premier, Mr. Greiner and the AttorneyGeneral, Mr. Dowd announced an inquiry to identify the cause
of delays and inefficiencies in the New South Wales court
system. They said that the Government had appointd the
management consultants Coopers and Lybrand W.D. Scott to
conduct the review. Mr. Greiner said the public confidence in
the court system would flounder unless action was taken to speed
up the hearing of court cases and to make the system more
efficient. Money alone would not solve the problems he said, but
fundamental changes in management practices had to be
introduced. He said that the consultants would consult widely
within the legal profesion in the course of their review and would
have due regard to the fundamental principles of justice and due
process. They are to report to the Government by the end of
Feburary 1989. He said that the Government had already taken
several steps to improve the court system including the
announcement in the State Budget of a24% increase in spending
on courts. New courthouses aare to be built at Parramatta and
Burwood, at Wyong and Byron Bay. In addition two new
Supreme Court Judges, four District Court Judges and seven
more Magistrates are to be appointed. U
N.S.W. Bar Assocation v. Kalaf
On 11 October 1988, the Court of Appeal delivered
judgment in the above matter.
The Court (Kirby P., Samuels J.A. and Mahoney J.A.)
unanimously held that Kalafs irregularities of dealings with his
client as well as his lack of frankness in dealing with the
Solicitors Admission Board amounted to professional misconduct
for which a reprimand would be insufficient.
The majority (Kirby P. and Mahoney J.A) held that the
appropriate penalty was suspension for one year - Samuels J.A.
held that Kalafs name should be removed from the Roll of
Barristers.
Kalaf was ordered to pay the Association's costs. A
precis of the decision will be published in Bar News in Autumn
1989 U
The journal of the
I
• From the President
totally unacceptable. A move to this site will intensify the
isolation of the Court, and would permanently downgrade it in
the eyes of the profession and the public in Sydney. The Council
has therefore supported moves to locate a more acceptable Site
and is hopeful that one can be found on Hospital Road. While
the Council does not support proposals for the amalgamation of
the Federal and Family Courts, it firmly believes that the Family
Court should receive the full support of the Federal Government
and the profession, and should be backed with appropriate
resources.
This is the last issue of Bar News for 1988 and it is therefore
appropriate to review the work of the outgoing Council. The
year has been a very demanding one for the Council. The issues
we have had to face include Transcover, Workcover, Delays in
the hearing of Criminal Trials, Delays in the Common Law
Division, Legal Aid, Legal Aid Fees in Criminal Cases, Criminal
Listing in the District Court, ICAC, the Ombudsman and the
Police, Mental Health, and the Family Court.
We have also had to adjust to the commencement of the
Legal Profession Act on 1st January and the introduction of
compulsory practising certificates on 1st July. We have moved
to a computer-based accounting system which handles
membership records and the issue of practising certificates. We
have recently made a submission to the Government for
amendments to the Act to remove some anomalies which have
become apparent.
At the time of writing the Transcover Committee, presided
over by the Attorney-General, the Hon. John Dowd M.P. is
continuing to work with no immediate resolution in sight. Here
I must acknowledge the dedicated work of Coombs Q.C. with
the research assistance provided in particular by Graham Ellis.
More recently the Hon. John Fahey, the Minister for
Industrial Relations, established a committee to review the
Workers Compensation Act 1987. This committee has 3 subcommittees and the Bar is represented by Poulos, McCarthy
Q.C. and Ferrari. Studdert Q.C. was also a member prior to his
appointment to the Supreme Court.
Unfortunately despite some progress no finality has yet
been achieved on any of the issues referred to above with which
the Council has been confronted. Indeed issues such as Court
delays are likely to be before the Council for some time to come.
The Hon. Lionel Bowen M.P., the Commonwealth AttorneyGeneral, has been anxious for some time to relocate the Sydney
Family Court in permanent premises of its own. Unfortunately
a decision has been made to locate the Family Court in Goulburn
Street. The Council considers that this site is inappropriate and
NSW Bar Association
One of the problems which will have to be faced by future
Councils is the problem of judicial salaries and allowances. In
recent years judicial salaries have not kept pace with inflation,
and in real terms they are falling further and further behind the
levels at the Bar, in the large law firms and in Commerce.
Neglect by Governments in this area constitutes a creeping
attack on the independence and efficiency of the Courts. I
believe that on this issue the Bar will have to be prepared to stand
up and be counted.
The Council is very concerned at the cost and shortage of
accommodation for the Bar. Counsels Chambers has a special
role and special responsibility in this area and the Council has
encouraged the Board to actively investigate opportunities to
secure additional permanent accommodation for the Bar. The
Superannuation Fund and Sickness & Accident Fund constitute
other specialised co-operative organisations which exist to serve
the needs of our members. Both Funds provide services at
favourable rates and on favourable terms compared with those
available in the general market. Both deserve support from all
members of the private Bar.
The Council, working in conjunction with the Australian
Bar Association, has undertaken a review of the professional
indemnity policies available to the Bar. Already the insurance
covers on offer have been expanded and clarified. The question
of premium rates is still under negotiation and any benefits are
not likely to be achieved until the renewals in 1989.
Upon taking office last year the Council decided that
something had to be done to improve relations with the Bar as a
whole. With this in mind it introduced a system of meetings with
the Heads of Chambers not represented on the Council. At these
meetings the Office Bearers outlined some of the Council's
current plans and the Heads of Chambers were invited to
comment on and criticise the work of the Council. A number of
the suggestions that were made at these meetings have been
accepted by the Council and acted on.
In conclusion, can I remind members of the existence of the
Banisters' Benevolent Association which in appropriate cases is
available to assist members of the Bar in the event of illness and
accident, and their families in the event of a member's death.
Cases of need should be brought to the attention of a member of
the Council. In some cases this is the only way we will get to
know of the need. U K.R. Handley
Report of the Marre Committee
on the Future of the Legal Profession in the United Kingdom
In 1986 the Bar Council and Law Society of England and
Wales established a committee chaired by Lady Marre CBE to
review the way the legal profession met the needs and demands
of the public for legal services.
13.
In July 1988 the Committee made the following
recommendations in relation to the structure and practices of the
legal profession:
14.
15.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Rights of audience in all courts other than Crown Court
should remain unchanged.
Solicitors who have been recommended by the Rights of
Audience Advisory Board and licensed by the Law
Society should have extended rights of audience for all
cases in the Crown Court (by majority).
A Rights of Audience Advisory Board should be
established for each circuit to make recommendations as
to which solicitors meet an appropriate standard for
rights of audience in a Crown Court. (by majority).
The Advisory Board should notify the Law Society
which solicitors should be licensed to appear in the
Crown Court and should also have the right to notify the
Law Society which licences should be withdrawn.
Professions other than solicitors should be permitted
direct access to counsel.
Where counsel is instructed by a professional client
(other than a solicitor) he should be entitled to negotiate
fees for work done direct with a professional client and,
if necessary, take such steps as might be available to
enforce payment.
Access by professional clients should not be restricted to
those professions which make it a disciplinary offence
not to pay counsel's fees.
The General Counsel of the Bar and Law Society should
explore the practicalities of promoting an amendment of
the law to enable banisters to enter into contractual
relationships with solicitors and/or lay clients and sue for
non-payment of fees; and should also explore whether
non-payment of counsel's fees should any longer be
treated as professional misconduct.
There should be no change in the present rule which gives
an advocate (barrister or solicitor) immunity from an
action for negligence in respect of the conduct and
management of a case in court.
Employed banisters who have completed their pupillages
should have the same rights of audience in the Magistrates
Courts and the County Court as are enjoyed by employed
solicitors.
Employed banisters should have direct access on behalf
of their employers, to practising barristers.
A barrister employed at a law centre should, where the
centre is organised on appropriate lines, be able to work
at such a centre whether a solicitor is employed there or
not; such a barrister should have direct access to counsel
and be able to appear in court for clients of the law centre.
4 - Bar News, Summer 1988
Employed banisters and solicitors (other than those
employed by the Crown Prosecution Service) who have
been licensed by the Rights of Audience Advisory Board
should have rights of audience if their employers face
prosecution in the Crown Court.
Rights of audience in the Crown Court should not, at
present, be extended to lawyers employed by the Crown
Prosecution Service.
Solicitors should be eligible for appointment as High
Court Judges.
16.
Any action relating to multi-disciplinary practices and
multi-capacity practices should await the completion of
the Law Society's examination of the issues.
17.
No change should be made in the present rule which
prohibits a barrister from practising in partnership.
18.
The Bar should continue to encourage chambers to adapt
and develop their support services and management so as
fully to meet the needs of a modem profession. Every
encouragement should be given to the steps being taken
to improve the educational and professional qualifications
of banisters' clerks. The practice of many sets of
chambers in negotiating new contracts with their clerks
on the basis of a salary with an incentive to reward effort
and efficiency should be adopted by all sets of chambers.
I
The Committee rejected the proposition that there should
be fusion of the Bar and the solicitors' branch of the profession.
All the Bar members on the Committee and one of the independent
lay members, Lady Elizabeth Cavendish, also opposed the
majority recommendations on rights of audience, principally
because they saw that any significant extension of solicitors'
rights of audience in the higher courts, (including the Crown
Court) carried a very high risk of bringing about fusion. They
saw the process being brought about by:
*
Reorganisation of solicitors' firms to establish or expand
advocacy departments;
*
recruitment of banisters to become advocates within
solicitors' firms;
* continued pressure for further extension of solicitors'
rights of audience with consequent damage to recruitment
to the Bar; and
*
the eventual concentration of advocacy resources within
the larger solicitors' firms.
Following the publication of the report, the Bar Council
of the Bar of England and Wales re-affirmed its view that any
significant extension of rights of audience to solicitors was
against the public interest and should be resisted. U
The Journal of the
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.1
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u Chief Justice Gleeson: "relaxed and friendly."
Bar News interviews the new Chief Justice
-
In 1979, speaking at the 20th Australian Legal Convention, you
' said: "Some of the qualities that are displayed by, and perhaps
even account for the success of some of our leading advocates
are antithetical to the qualities required of a judge." What
qualities were you thinking of when you said that, in relation to:
(a) barristers; and (b) judges?
Competitiveness, aggression and the capacity to view a
(a)
case with a keen eye to the interests of one of the parties to the
litigation.
(b)
Patience, courtesy
' and the concern for the
interests of justice rather
than the individual parties.
' I would be opposed to the
use of anabolic steroids
by judges, but I could
'
understand how they could
be useful to banisters.
You have beenAustralia's
' leading advocatefor some
years now. Presumably,
you possess some of those
' qualities as a barrister of
which you were speaking.
Which do you possess?
The breeding of this
question is by J.W. Smyth
out ofJane Singleton. The
flattery does not succeed
in masking the sting. The
answer to the question is:
all of them, but in
moderation.
Which of the qualities
which you think desirable for a judge to have do you believe you
possess and which do you think you may have to "grow into"?
'
I
'
I am constantly amazed at my own patience. I hope to be able to
"grow into" the other qualities.
most judges that I have seen going about their business have
taken a somewhat less adversarial approach to the problems
before them than I have. I remember attending a speech in the
Bar Common Room made by the late Philip Jeffrey upon his
appointment to the Supreme Court Bench in which he said that
he had made a resolution that he would not, as a judge, regard it
as any part of his function to endeavour to persuade counsel to
agree with him. That sounded to me like a very good resolution,
and also one that I will have considerable difficulty in keeping.
You also said in the same speech that there were some matters
upon which judges did not speak up frequently enough, in
particular, matters of public concern in the law and the
administration of
justice. Do you want
judges to have a higher
public profile on such
matters?
Higher than whom?
My observations were
made in 1979. Since
then some judges have
assumed distinctly a
high public profile. If I
may, I would observe
that the quotation from
my speech is somewhat
selective. What I in
fact said (see 53 ALJR
346) was: "There are
some matters upon
which judges do not
speak up frequently
enough, and when they
do, insufficient notice
is taken of what they
say. There are,
however, other matters
upon which some
judges (fortunately, a
relatively small minority) already have far too much to say."
I proceeded to give examples of what I had in mind as falling into
the former category.
Do you anticipate having any difficulties translating from the
Bar, not only to a position on the Bench, but to the job of Chief
Justice of New South Wales?
Do you think that, whether because of events of recent years
concerning the judiciary, or generally because the community is
more critical ofprofessions than it used to be, the public image
of the administration ofjustice has become tarnished?
Yes. I feel that I really have very little idea what it is like to be
either a judge or the Chiefiustice of New South Wales. However,
Yes. Both of the factors referred to in the question have been at
work in recent years. It is to be hoped that the first will disappear,
NSW Bar Association
but the second is bound to increase. This is the age of
consumerism, and litigants are encouraged to regard themselves
as consumers of judicial services. However inappropriate such
a notion may seem to a laywer, it is by now well entrenched in
the community.
If so, what steps will you be taking to restore it?
There are some aspects of the administration ofjustice of which
public criticisms are well-founded. For example, the present
level of court delays in New South
Wales is simply unacceptable. This
is a problem which is being expertly
and diligently addressed by persons ç
within and outside the Supreme Court,
and if their efforts are successful then
they will have achieved a major
improvement in the public image of
the court. I hope that I will be able to
encourage and assist their efforts.
Do you perceive a role in the Supreme
Court for a public relations/media
liaison person?
No.
How do you expect to divide your
time on the court between the Court
of Appeal, the Court of Criminal
Appeal and the administration of the
Supreme Court?
Government to give further financial assistance.
The High Court has decided that its members will no longer
wear wigs and afull set of robes because of its purely appellate
function. Do you think the Court of Appeal should follow suit?
This is not a matter on which I would wish to express a view
without having heard what the judges think. However, I can't
imagine that it would be appropriate to have one form of dress
for the Court of Appeal and a different form of dress for other
judges of the Supreme Court.
What sort of a court can we expect to see
you run?
There is
undoubtedly
a need for
more judges
and resources
available
for the
administration
of justice.
Relaxed. Friendly. A cosy place in
which a just solution to peoples'
problems can be sorted out as the result
of a quiet chat between Bench and Bar.1
What do you hope to see from members
of the Bar appearing before you?
It would be impertinent of me to lecture
barristers on their professional standards.
I have no doubt that the Bar will continue
to maintain its present high standards in
that regard.
Do you see the increase in the megafirms and in-house advocates as representing a challenge to the
existence of the Bar as an independent institution?
Because of my complete lack of experience and because I only
have avagueidea ofwhat is involved in the work ofadministration,
my estimate is likely to be completely unreliable. However, I
would hope that I would be able to devote approximately 1/3 of
my time equally amongst the three matters referred to in the
question.
Oddly enough, I see these circumstances both as representing a
challenge to the existence of the Bar as an independent institution
and, at the same time, as helping to ensure its survival. Nothing
is calculated to underscore the need for an independent Bar quite
so much as the viewing of a few episodes of L.A. Law.
The Supreme Court appears to be going through a crisis in terms
If so, do you think that the Bar should change any of its practices
of having sufficient judges to hear the matters before it. How do
you see that crisis being resolved or at least eased?
in order to resist that challenge?
There needs to be a combination of two elements. There is, I
think, undoubtedly a need for more judges and resources available
for the administration of justice. However, it is unrealistic to
expect that governments can be persuaded to seek to solve the
problems confronting the operation of the courts by throwing
money at those problems. They will only be induced to spend
more money if they can be shown that the courts themselves are
taking their own steps to promote efficiency. This is being done
within the Supreme Court at the moment. A great deal of effort
is being expended upon devising a program for reduction of
delays. This is the sort of thing which might well encourage the
I
It is for the Bar Council, rather than judges, to make decisions on
matters such as this. However, I think it is important to maintain
flexibility. For example, the question of accepting instructions
in relation to non-contentious matters from persons other than
solicitors is one that will have to be kept under review.
Will you miss the Bar?
Yes. U
* Believe that, and you'll believe anything! - Ed.
The journal of the
I
The Artful Bar
Clive Eva it, who combines his practice at theBar with ownership
of the Hogarth Gallery, reviews the Bar's eclectic art collection.
The profession has long patronised the arts. Any evening at
the Opera House sees a gathering of Bench and Bar. Judges of
the Court of Appeal have a penchant for opera whereas the
Equity Bench, in keeping with the jurisdiction, prefers more
esoteric chamber music.
There is an even closer connection between Bar and stage.
The funniest ever review compere was Roden. Waddy is also a
riot in this field. However it is in dramatic art that the Bar shines.
Those fortunate enough to have seen Rofe in "The Eagle has
Two Heads" as he clutched the
heroine to his bosom witnessed
one of the great moments in
theatrical history.
Every barrister has some
interest in the visual arts. Many
own at least one decent picture and
some floors have a high standard
of art in the common areas. There
are fabulous private collections.
The name most mentioned is
LockhartJ but his collection would
have to be good to rival the
magnificent collections of
Meagher orthe late Tom Reynolds.
Meagher's collection which is
scattered all over Sydney would
be big enough and good enough to
refurbish the Art Gallery.
In 1959 Snelling gave a portfolio of portraits of early
English Judges (also missing). At that time the Association
commissioned the artist Bill Pidgeon to paint the portraits of
Barwick and Manning which hang over the refectory table at the
top of the dining room. Mr. Pidgeon was better known as a
cartoonist and has unduly
emphasised, indeed exaggerated,
their stem counten an ces. Those
who trembled before Manning J
when seeking an adjournment of
one of his special fixtures must still
shudder when they see this grim
profile. Both of them deserve better.
The artist has missed their true
personalities which were far more
amenable. They both worked
tirelessly for the Bar and were the
driving force behind SelborneWentworth Chambers.
I
The gifts trickled in over
the next dozen years. All had a
legal theme. They were mainly
pictures or photographs of Judges.
Although all three have given
paintings to the Association it was
Meagher and Reynolds who
dramatically influenced the Bar
collection by bringing members
into contact with modem art.
Mr. Pidgeon's Barwick
Before Wentworth Chambers opened in 1957 there
was no common room and nowhere to hold social functions.
Donations were few. Sir George Rich holds the honour of
presenting the Association with its first gift - a portrait of himself
(since disappeared). Sir George was also responsible for the
Association's second gift a year later when Barwick donated the
President's chair now in the dining room under his portrait. Sir
George had been reading in the Association library in the old
Law School when his chair collapsed.
"..being somewhat shaken he accepted from the librarian a
glass of spirits, which effected a sound restoration. His
Honour jocularly submitted to Barwick, then President of the
Association, a claim for damages which led to a good deal of
humorous correspondence between them and an ultimate
'settlement' in the presentation of the maple chair. Barwick
NSW Bar Association
sought a latinism for the chair and Mr. John Sparrow, warden
of All Soul's College, Oxford was enlisted to supply the
inscription: "Hic parumper requievit Georgius Rich donec
lyaeis laticibus suscitatus est", his translation being "Here
George Rich reclined in rest until he was raised up by strong
waters." (J M Bennett "A History of the New South Wales
Bar" at 215).
Bowen who also had a
major private collection
commissioned Mr. Pidgeon in 1961
to paint sevel legal paintings which
he donated. These are hung together
at the far end of the dining room.
,J However the artist who excelled in
black and white drawings was never really happy with paint.
What should have been light-hearted is too sombre.
The collection ambled along with more legal portraits,
photographs and the occasional etching. Thus in 1966 Cohen
(Almy) presented some framed portraits of English and NSW
Judges, in 1970 Gee gave a photograph of the District Court
Judges of 1929 and in 1972 a picture of Ralston was presented.
This probably would have been the pattern of donations for the
next 100 years when in 1973 out of the blue a large painting of
an ostrich arrived. This is described in the catalogue thus:"...a hapless and enigmatic ostrich. It will evoke apt and
cunning thoughts."
What induced Meagher, Hughes, Jeffrey, Lockhart and
O'Keefe to give this picture by Terrence O'Donnell is not
known. It could be they were concerned at the way the collection
was going and wanted to demonstrate that art could be
contemporary and cheerful and need not have any particular
meaning. On the other hand they may have won it in a raffle.
Over the next 10 years the ostrich was followed by eight
further contemporary but non-legal pictures. Meagher and
Reynolds were behind all these either alone or in association
with other members - mainly 8 Selborne. This set the yardstick
for 7 Selborne to give the Bill Salmon "Twist Trunk" in memory
of Jeffrey J and an Eric Smith in memory of Henderson. The
other floor to give a painting was 10 Wentworth who in 1984
appropriately donated "The Unexpected".
on back). An absolute bargain. It would be worth at least
$15,000 on today's market (an increase of 2,000% which would
rival Voss's superannuation fund profits).
Another first class painting is Euan McLeod's "Sir Ninian
and Lady Stephen". This was not commissioned but came from
an exhibition at Watters Gallery. At first glance it looks like a
parody with garrish colours of green, yellow and black, but on
closer examination the sitters emerge as real people with character.
It is a superior portrait to Mr. Pidgeon's Barwick.
There is only one realist painting "Time Means Tucker" by
Tim Stonier who is a skilled craftsman. You have to look closely
to observe it is not a real flag but only painted.
Although at the
same time gifts of legal
theme pictures, prints,
photographs and
engravings kept on
arriving these were
mostly shunted off to
passageways, the
archives trunk,
boardroom or the
Registrar's office.
The last picture
presented was in May
this year when 8
Selborne gave the Ian
Pearson "Hunters and
Collectors" in memory
of Reynolds. The
yellow spiral appears
three dimensional
because of the black shadows painted underneath. This trick of
illusion was introduced into Australia by Tim Stonier. The
painted tree branch motif was first used by Cohn Lanceley.
However despite its eclecticism it is a worthy and impressive
painting. The deep waters of the pond lie still with a hint of
mystery.
In 1974 apainting
by Geoffrey Proud caused
such controversy it made
the press. Untitled, it shows
a lady unaware of Section
576 of the Crimes Act. It is
described in the Inventory
as:"A fine Renoirresque, soft,
spray-gun painted work ... a
seductive example, in the
n e o - real is t
mode.. ..comprehensible by
the most benign barrister"!
"Hunters and Collectors"
According to the catalogue
responsibility for this gift
is shared by Meagher, Hope
JA, Lockhart, McHugh,
O'Keefe, Cripps, Morris,
Poulos, Hely and Chapman.
The common rooms today have an excellent and harmonious
collection of traditional and modern art. The pictures blend well
and make a lively collection. Art connoisseurs would recognise
the quality of the paintings and even those members and visitors
not so familiar with art would know the collection is out of the
ordinary and unique for such a legal setting.
The painting is not neo-realist at all but photo-realist. It
resembles a photograph because it appears sharp from a distance
and out of focus close up. It is not a good example because the
central figure should remain sharp from all distances. Using
Renoir's name in the description is questionable. It had many
critics including Coombs (Janet) who retaliated by donating a
painting depicting an undressed male. The Association rejected
this on aesthetic grounds because the work was by an amateur
artist and not competent enough. What would have happened
had there been a gift of one of Juan Davila's highly professional
homosexual paintings?
The jewel in the crown is "From David Jones' Window"
(1936) - a drawing by Grace Cossington Smith (Yet another gift
from Meagher and Reynolds and others of 8 Selbome). It shows
Queens Square and Hyde Park Barracks then the District Court.
Queen Victoria gazes serenely across Macquarie Street (she has
since turned). People scurry by like spiders and altogether the
picture captures the art deco charm of pm-war Sydney. Meagher
and Reynolds purchased it in 1974 for only $750 (price marked
As the surrealist Magritte would have said, the picture is not
a woman but only a painting. If females wish to protest at
anything in the collection, the obvious one would be the
photograph ofSirFrederickDarley donated in 1965 by Maxwell.
Sir Frederick was Chief Justice of New South Wales in 1921
when our first woman Barrister, Miss Ada Evans, qualified for
the Bar. He did not approve of women Banisters and refused to
allow her to practice. Eventually the Holman Government had
The journal of the
to pass a special Act to enable her to appear in Court.
The painting by Mr. Proud ought to be taken in the context
of the contemporary paintings which surround it. Artistically
speaking, it does not warrant the attention it has received.
from the Round Church in the Temple which was placed thereby
the Knight Templars before 1185. A capital of one of the original
columns of the choir dedicated in 1240 was also donated with a
piece of the art of one of the Lancet windows of the organ bay of
the Church and a carved pediment which formerly stood over the
doorway of the students entrance to the library engraved Gray's
Inn. These old stones are full of history and are aesthetically
pleasing.
One way or the other, the Association has a significant and
important art collection. It now needs direction and a curatorial
policy. There is no space in the common areas for even one more
painting. The few bare patches of wall which survive must
All types of sundry items have been donated such as a brass
remain to avoid the collection becoming too cluttered. As it is
ashtray from HMAS Australia given by Bell, a ships bell from
the passageways, back rooms and administration sections are
Wheelahan and Hartigan, a Sepic River Mask from the judges of
overcrowded with pictures and photographs relegated from the
the Supreme Court of Papua New Guinea and a plaque from the
common areas or not regarded as good enough or too small to be
US Navy given by Captain Phillips. There is a bust of W.C.
on public view. The Art Gallery of New South Wales gets rid of
Wentworth from the Nielsen Park Trust given by Snelling and a
excess pictures by selling them. However the Association could
white bordered burgundy table runner and 24 napkins being a
place many of the overflow on loan to the floors or members.
gift of the silks of 1985.
The old photographs and
prints are fascinating as
There are
are most of the legal
numerous sporting
paintings and portraits.
trophies. Four trophies
Some could be lent to
for golf, a soccer trophy,
the Supreme Court to
a cricket trophy, a hockey
liven up the drab walls.
trophy and a tennis
The Federal Court
trophy. None of these
obtains its excellent
could be appraised
collection from Art
because unfortunately
Bank which only lends
they seem to be held by
to Federal institutions.
the competition.
There is no similar State
scheme. Perhaps the
The glassware
Geoffrey Proud could be
was donated by Counsels
placed on the 12th level
Chambers and comprises
where it could be more
Waterford tumblers,
frequently seen
sherry glasses, wine
especially by at least two
glasses, champagne
of its donors.
glasses (two dozen of
out of the blue a large painting of an ostrich arrived."
each), an ice bucket and
As to the future acquisition of paintings the possibility of
a water jug. Altogether fourteen dozen glasses. Perhaps there
obtaining the name artists is out because of ridiculously high
should be a trophy related to their use which judging from the
price levels. Today everyone is scrambling to buy paintings
size of the collection would never be lost. In the catalogue the
forcing prices up and up. It is reminiscent of the rush for shares
following remarks appear about a hole in one of the champagne
on the New York Stock Exchange in the years leading up to
glasses:October 1929. The only sensible policy is to obtain works by
younger emerging artists and hope they will come good in years
"The defect...was discovered at a dinner in the boardroom
to come. This is exactly what Meagher and Reynolds had been
when Norman Travers was pouring wine for Sir Garfield
doing. Predictions are always difficult but the Stonier and the
Barwick. The champagne spurted out in a most realistic
Salvatore Zoffrea could become extremely valuable in time.
fashion (cries of "Jamis boit de l'eau). Sir Garfield was
intrigued and delighted and begged Norman to continue.
It is also recommended that pictures be rearranged every
However, we who deplored the waste of good wine, won the
few years. New positioning and replacement makes any room
day. Waterfords replaced it."
look different. This is a policy adopted by public galleries to
avoid any feeling of deja vu.
There is an impressive collection of silver. The first gift in
1963 was a silver ice bucket, tongs and water jug from that
Apart from pictures the Association has an excellent
machiavellian group, the Banisters Clerks.
collection of furniture, silver, glass and other bric-à-brac.
There is a silver ducal butlers tray "Nec Male Notes Eques"
The four Inns presented replicas of their Coats of Arms and
(a knight of good repute) (c1789) donated by Mrs. Holmes in
historic stone relics. There is a purbeck marble base of a column
memory of Holmes J. Yeldham gave a silver cigar box with a
NSW Bar Association
Bar crest and Samuels a Georgian silver cream jug and ladle.
Meagher gave a silver dutch sweetmeat bowl and Gleeson four
beautiful art deco silver menu holders. Altogether there are over
forty donors and over 100 pieces. The collection is worth
thousands. Unfortunately the silver and other smaller items such
as glassware, cutlery and the like are locked away in drawers.
They ought to be put on view in proper display cabinets. Some
gifts of antique cabinets for this purpose would not go astray.
Donations of furniture include the boardroom table together
with 18 chairs donated by Mr. H.D. Daley and the George IV
longcase clock (c 1820) donated by the silks of 1981 and 1982.
To date all gifts, including even Meagher's are on orthodox
lines - paintings, silver, furniture and other objects d'art. The
current collecting crazes for nostalgia such as old movie posters,
costumes and particularly antique toys are not represented.
Who will be the first
to donate a Schiparelli
gown, a Steiff teddy
bear ora Homby 0-4-0
number 1
tank
locomotive?
Barpresented and conducted cases, cross-examined and
addressed. The comparatively small collection of items of
historical interest is kept in only one tin box.
The box contains a wealth of absorbing items but there
should be more. For example, there is a scrap album of press
clippings tracing the career of Sydney's second woman Barrister,
Sybil Morrison. A page from "The Sun" of 24 January 1926 has
three photographs entitled "Mrs. Sybil Morrison, Sydney's
Woman Banister, in a corner of the kitchen, preparing the
potatoes for dinner", "Ready for the court, picture taken before
a tapestry in her home" and "The cup that cheers..Mrs. Morrison
dispenses afternoon tea". These photographs are followed by a
lengthy article:"Mrs. Morrison has been most successful during her 12
months at the Bar, and when she sheds her wig and gown she dons an apron to peel
potatoes, or beat up cakes,
and changes into taffetas
for dinner, at which she
makes a bright and
charming hostess etc. etc."
L
There follows a
Vk'
The blot on the
clipping from "The Dail
y
escutcheon is the
Guardian" of 25 February
library collection. It
1926 with the headlines
was established in
"Two Portias ask for
1936 and started off in
judgment" "Woman
a room in Denman
solicitor briefs woman
Chambers then moved
Barrister". The article
to the top of University
goes on:Chambers. Although
the library had over
"Two Portias will
two thousand books
make a magistrate blink at
donated by Judges and
the WaterPoliceCourtthis
Sir Ninian and Lady Stephen - real people with character.
Barristers it was never
morning. Miss Jollie
a success. Revenue
Smith a woman solicitor
came from a charge of
has briefed Mrs. Sybil
threepence per book and from fines. Even though morning and
Morrison a woman barrister.
afternoon tea was served and readers had the use of a telephone
the library was seldom patronised. At one stage Tom the
It is hoped that Mrs. Morrison received a better brief than U
University Lift Driver was its custodian keeping the key in his
those Miss Jollie Smith delivered to Counsel after the war.
pocket. Eve Coyle who was part-time librarian in the fifties used
to complain that often days could go by without a visitor. It was
The press clippings trace Mrs. Morrison's career for two
Eve who found and supplied Sir George with the brandy when
years then cease abruptly in 1926. The remaining 30 pages in the
the chair collapsed.
album are blank. What happened? The yearly almanacs disclose
moves to less fashionable Chambers and by 1936 her name
In 1952 the library moved to Wentworth Chambers and
disappeared altogether.
remained thereafter in the complex. Although there have been
many generous gifts, incuding the whole of the estate of Emerton,
Other items in the box range from photographs of members
the Bar could have done much more.
making merry at the 50th anniversary ball of the Association in
1986 to a 1941 report on qualifications for appointment of
The collection of legal memorabilia is disappointing to say
King's Counsel.
the least. One would have expected for example, appeal books
and transcript of leading cases. These would be invaluable to
There are sketches and humorous descriptions of silks in the members as they could read how some of the great leaders of the
early years of the century by Scarvel and a long poem by Letters
The Journal of the
"Elegy of the Bar". This was written when the then Attorney
General Lysaght (Labor of course) had incurred the wrath of the
Bar by supporting a move for an amalgamation of the professions
and abolition of wigs and gowns. Letters in rhyming couplets
roast the Attorney and many of the leading barristers of the day
who included Kitto, Holman, Windeyer, Toose, Watts and
Lamb.
Herewith a few stanzas:"His Majesty's Attorney General
(The New South Welsh one, not the Federal)
Who let the murd'rer walk, and hangs the Bar,
Demands th' attention of our earliest par,
A giant in height, out of a meagre girth,
He stalks and booms as tho' he owned the earth.
A feeble chin his thrusting beard off-sets
And scares the Crown to sending briefs to pets
And Dignam master of a bogus college,
Whose dupes pay more than earns his legal knowledge
Mack's rocky practice hath declined of late,
The reason I would rather not relate
When Hammond squeaks, E'en Jordan's whine enthrals
But Newell's bleat like Mack's dull drone appals"
Luckily there appear to be no Barrister poets around at the
present time to write an up-to-date version of the above.
Members are urged to remember the various collections of
the Association whenever the opportunity arises. D
Above. Mrs. Sybil Morrison, Sydney's
woman barrister, in a corner of her kitchen,
preparing the potatoes for dinner.
Right: Readyfor the court, apicture
taken before a tapestry in her home. /.
•
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NSW Bar Association
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NSW Bar Association v. Maddocks
On 23rd August 1988 the Court of Appeal constituted by
Kirby P, Samuels J.A. and McHugh J.A. handed down a
unanimous judgment in the matter of NSW Bar Association v.
Maddocks.
The Court made orders in accordance with the summons
declaring that Maddocks was not a fit and proper person to be a
member of the NSW Bar Association and directing that his name
be removed from the Roll of Banisters.
Findings of the Court of Anneal
The Court found that Maddocks had:1. While a defendant in personal litigation threatened that
unless the proceedings were withdrawn he would disclose to
the police that the plaintiff had defrauded an insurance
company.
2. In 1977 made a representation to the Equity Court that he was
an appropriate person to be a company director without
disclosing that he was an undischarged bankrupt in
circumstances where he knew it to be an offence for an
undischarged bankrupt to hold such office.
3. Accepted instructions as a barrister on behalf of a client
without the intervention of an instructing solictior; conducted
conferences with him in inappropriate places and without the
attendance of a solicitor or lerk and received from him
payment of fees in cash.
4. Notbeen honest and candid with the Courtin the explanations
that he offered with respect to the above matters.
Points of Interest
The case is of particular interest because:1. It contains a useful summary of the principles to be applied
in disbarment proceedings.
2. It stresses the absolute necessity for banisters to be both
honest and candid in answering complaints relied upon as the
foundation for disbarment proceedings if they are to have
any real prospect of remaining on the Roll.
3. It emphasises the seriousness with which the Court views
misconduct directly involving Court proceedings or the
barrister's relationship with the Court.
4. It acknowledges the diversity of the Bar and the
inappropriateness of rigid insistence upon an unvarying
mode of professional practice.
5. It suggests that seeing clients without solicitors present and/
or taking cash directly from clients may not in the
circumstances of a particular case be professional misconduct
of such seriousness to warrant disbarment.
6. It suggests that it would be far more efficient and expeditious
if the factual aspects of disciplinary cases were contested
before a single judge whose findings would then be referred
to the Court of Appeal for ultimate decision as to whether
those findings justify any disciplinary action. U
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Parramatta, Bob Maxwell 633 5455.
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419.6600.
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Haskins+Sells
The journal of the
I Court Delays
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The Supreme Court has launched a full-scale assault on
the problem of court delays in the Common Law Division.
Robert Stitt Q.C. outlines the new measures which were
odiscussed at a seminar for members of the Bench and the
profession on 17 September, 1988
The backlog and delay existing in the Common Law
division of the Supreme Court of New South Wales has now
reached a critical level.
At a recent seminar for judges and members of the legal
profession organised by the Chief Justice Sir Laurence Street the
nature of the problem and methods for its solution were examined
and discussed.
The Chief Executive
Officer and Principal Registrar
of the Supreme Court, Mr.
Warwick Soden, delivered a
report which evaluated the
extent of the delay in the
Common Law Division.
Some of the points
which emerged from that
report were:
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*
In the Sydney Registry
alone, filings of statements of
claim have remained high at
approximately 9,500 per year
since
1985, with an
extraordinary rise in filings in
1986 of 13,332. This was
directly attributable to the
imminent Transcover and
Work Cover Legislation.
* Any percentage decline in the success of pre-trial
settlements reduces the Court's overall capacity to dispose of
cases. The percentage of cases not reached has increased from
10.3 in 1985 to 22.6 in 1987; already in 1988 it is 14.4.
* The decline in the availability of judges to hear common
law matters is quite startling. The average number of judges
listed as available per day to take general matters in the common
law division has declined from 6 in 1986 to 2.4 in 1988. This
decline is partly due to the increased workload within the
Criminal Division of the court with the resultant loss of judicial
resources to the Civil list.
On presently available statistics the estimated disposal rate
of matters in this list lies
between 4 years and 12 years.
The need for urgency in
defeating delay is starkly
apparent.
Mr. Justice Wood as
chairman of the Delay
Reduction Project Committee
outlined in a report some of the
proposals which are to be
implemented by the Court in
an endeavour to overcome this
critical problem. Apart from
the difficulties identified by
Mr. Soden the committee is
concerned that if common law
rights in motor vehicle and
industrial accidents are restored
retrospectively from 1st July,
1987 and these claims are to be
heard in the Supreme Court a
significant volume of
additional work will come into
the division.
I neopenmg of Supreme
Court
Registries
in
2.4 judges"
Wollongong, Newcastle and
Wagga Wagga allowed parties to comence actions in those
The proposals as to current matters will take effect from the
country centres. There has been no decline in the number of
commencement of the 1989 Law Term. All practitioners should
actions commenced in those areas.
carefully note the following points:
* Since mid-1983 pre-trial conferences in claims for damages
for personal injuries have been conducted. The percentage of
common law mattes settled prior to hearing has steadily fallen
from 47.3 in 1983 to 15.4 in 1988.
* A decline in settlements at the door of the Court has
occurred since 1983. This decline is believed to be attributable
to the fact that cases have been unable to be allocated a definite
hearing date. As the delay in hearing dates increase, the
settlement rate decreases.
NSW Bar Association
1. A revised roster which allocatesjudicial resources between
civil and criminal matters will be introduced.
2. The Court of Criminal Appeal sittings are to be concentrated
over ten days in two weeks of the month.
3. Regional Circuits, the majority of which will be
concentrated in the middle of the year will be introduced. The
circuits will be presided over by the same judge sitting
successively in each centre as the work requires.
The Regional Circuits are as follows:
*
*
*
*
*
*
Northern Rivers - Grafton, Lismore, Coffs Harbour.
Northern Tablelands - Tamworth, Armidale, Nanabri.
Central West - Dubbo, Orange, Bathurst.
Riverina - Albury, Griffith, Wagga.
Broken Hill.
Goulburn.
(t) that settlement prospects are explored;
(g) whether there is to be any application to dispense with the
jury or other contested interlocutory application;
(h) whether there are any aspects in which informal proof or
delivery of witnesses statements or delivery of bundles of
documents relied upon would assist in disposition of the
proceedings;
(i) that the estimated length of hearing is realistic.
There will be concentration of criminal hearings separate
from civil sittings in country districts at a principal centre
for each region. They are Lismore, Tamworth, Bathurst,
Wagga, Broken Hill and Goulbum for each Regional
Circuit respectively.
The conference should be attended by counsel or solicitor
fully prepared to negotiate and make relevant decisions.
The plaintiff and the defendant (or the relevant claims
manager where the defendant is insured) should also
attend. Offers between plaintiff and defendant and also
contribution offers between cross-claimants will be
recorded and if made by a defendant with payment-in
arrangements, treated as equivalent to a payment in;
otherwise the offer should be accompanied by a payment
into court within fourteen days after the conference. The
plaintiff's presence at the conference will be necessary and
the Master will ensure that he/she is involved in the
settlement negotiations.
4. There will be continuous sittings (alternating civil and
criminal) in Newcastle and Wollongong (in the latter case
using that centre as the extra court for criminal trials) with
provision for standby periods for extra sittings.
5. Once the pre-trial procedures have been completed in the
Administrative Law and Defamation Lists (which should
remain specialist lists under the control of a particular
judge) matters in those lists should be included in the
General List, with appropriate priority for the purposes of
allocating a hearing date.
6. No changes were recommended in relation to the Admiralty
List.
7. All pending matters in the long cases list or matters sought
to be added to it, will be subjected to court supervision to
confirm that they are properly in the list, to narrow the
issues, to promote settlement and to ensure realistic time
estimates are given for the hearing when a date is allocated.
The criterion for a long case will be 7 days plus.
Once a matter is fixed for hearing no additional particulars
or reports will be permitted (save for good cause) and the
matter will proceed on the date allocated unless settled.
10.
Costs sanctions will be applied in the case of matters which
should not reasonably have been left in issue at the
conference. Cost orders will be made in favour of the
defendant if the verdict does not exceed the offer made by
the defendant at the Issues and Listing Conference.
11. In jury matters, at the Issues and Listing Conference
theparties will be required to specify:
which doctors whose reports have been served, are required
forcross-examination; reports of those doctors who are not
required for cross-examination will be permitted to be
tendered and incorporated in the transcript as if they were
called;
(ii) statements of the past earnings losses, out-of-pocket
expenses, comparable earnings and workers' compensation
paybacks are to be settled so far as they can be agreed and
incorporated in the transcript as if the relevant witnesses
were called;
(iii) The number ofjury matters listed will be increased and the
practice of avoiding the end of the week for such trials is
to cease.
(i)
8. The court will be in a position to guarantee firm hearing
dates. The period between the Issues and Listings
Conference and hearing is intended to be reduced to six
weeks. Matters will only be given a hearing date when the
court is satisfied that they are ready for hearing. This will
require the parties to be fully prepared at the time the
hearing date is allocated and so should encourage settlement.
9.
A central part of the new proposals is the Issues and Listing
Conference. This will be held before a Master. At the
Conference the court will not allocate a hearing date unless
satisfied that the matter is ready to be heard. At such
conference the Master will satisfy himself:
(a)
that all medical reports and experts' reports to be relied
upon have been served;
that final Part 33 particulars have been filed and served;
that all documents evidencing financial loss have been
served;
that all necessary medical examinations have been
conducted;
that the issues are settled;
(b)
(c)
(d)
(e)
12. The parties should be offered an opportunity at the time of
the preliminary conference (in the case of expedited and
complex matters), at the time of set down (in the case of
standard track matters), and at the time of the Issues and
Listings Conference (all matters), to refer the matter to
either arbitration or mediation by individual members
drawn from a panel of experienced Counsel and Solicitors.
Arbitration would follow the District Court model;
mediation would involve an informal "weighing" of the
The journal of the
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claim by an experienced practitioner and would be more
suitable to cases where the liability issue was unlikely to be
substantial.
These measures will go a long way towards facilitating
settlements. They should also remove the "advantage"
perceived by some insurers of not making an offer until the
case is called on for hearing.
13. The court is also to adopt a case flow management
programme for new listings. This will apply to all new
filings from the start of 1989.
The guiding principle of this program is that the court will
establish clear, realistic and achievable time standards for
case processing. The profession will be expected to
maintain and keep to those timetables. The court will take
control of each new case from filing until disposition.
Events will be scheduled within fixed time limits, dates for
hearing will be certain dates and a firm adjournment policy
will be respected.
14. The present method of instituting proceedings in civil
causes by summons and statement of claim will be
preserved. But there will be 6 separate "tracks" for their
processing. They are:
Within this period of four months the parties would be
expected to conclude the pleadings and interlocutory
procedures and to exhaust the default and summary
procedures in debt recovery actions. If this has not been
done, cost sanctions will apply, including the non-recovery
of costs for steps later taken, unless good cause to the
contrary is shown.
17. Where the matter is complex it should be so endorsed and
an appointment for a preliminary conference obtained
when the statement of claim is filed and served.
Complex matters will remain under the continuous
supervision of the Court. A timetable for directions will be
given by the Registrar. Disputes about it will be referred to
the Master. Afer the time for the last step in directions has
expired the matter will be called up for review. When all
interlocutory matters are concluded the matter will be set
down as ready. It will then be called up for an Issues and
Listing Conference after which a hearing date will be
allocated.
(i)
Applications - short matters in the Friday application list,
or before a Master;
18. Defamation matters will continue to be managed under the
supervision of the Defamation Judge.
(ii)
Administrative law.
The solutions proposed by the Committee depend upon
maximising the opportunities for settlement. It considers that the
existing delays should be capable of reduction by the new roster
which will allow greater certainty of listing and better use of
available judge time in civil cases, more effective pre-trial
narrowing of issues and greater certainty of hearing, with limited
opportunity for adjournment or risk of not being reached, and by
the use of Acting Judges.
(iii) Standard - i.e. iun of the mill cases, including most
personal injury cases not requiring special directions or
supervision.
(iv) Complex - matters because of the number of parties, likely
issues or special features requiring hearing time in excess
of 7 days or special directions e.g. cases of professional
negligence, spinal chord trauma.
(v)
Defamation.
(vi) Expedited - matters which because of urgency or simplicity
of issues permit of or require a prompt hearing.
15. Matters will be allocated as "expedited track", "standard
track", "complex track", "defamation track" when the
proceedings are commenced by statement of claim. The
plaintiff should endorse the initiating process with a
statement as to the track considered appropriate.
16. Where the claim is the "run of the mill" personal injury
case or debt recovery action then it should be endorsed
"standard track" in which event the usual rules forpleadings
and interlocutory steps will apply.
Each standard track matter which has not been settled or
finalised by summary or default judgment within four
NSW Bar Association
I
months should then come before a Registrar or Master for
a preliminary conference at which its place in an appropriate
track would be considered and appropriate directions given.
The Committee suggests that without additional judicial
resources there is no prospect of making any real in-roads into the
existing backlog. Only limited gains can result from improvements
in internal procedures and it is unrealistic to expect judges to
increase their personal workload. In this regard it is evident that
there has been a substantial increase in individual case disposition
rates over recent years and the pressure of work upon judges in
hearing cases and deliverying judgments in the wide variety of
work assigned to them is already burdensome.
The Attorney-General, Mr. John Dowd, spoke at the seminar
and it was apparent from his words that the Government is aware
of the considerable problem of delay in the courts. It was equally
apparent, however, that the Government did not propose to solve
this problem by throwing money at it and that it was looking to
the court itself to attempt to alleviate some of the difficulties.
The implementation of the proposals of Mr. Justice
Woods'Committee will go some way towards achieving that
objective. Li
Reports from Bar Council Committees
Fees Committee
1. Recoveries
In the financial yearended3Oiune 1988 a total of$285,989.69
has been recovered from solicitors on behalf of 258 members.
This compares with $263,501.90 in the previous financial year.
An increasing number of matters are being referred to
arbitration in accordance with the Joint Statement between this
Association and the Law Society. From 1 July 1987 to 30 June
1988 16 matters were so referred to arbitration. The Fees
Committee would especially like to express its thanks to those
Members who give their time to act as arbitrators.
A survey of awards made by arbitrators in the last few years
indicates that the majority of awards made was in favour of
counsel.
There are a number of aspects of recovery of fees for
Members which still remain troublesome. A not infrequently
occurring problem is that the solicitor responsible for payment
of counsel's fees may sell his practice, die, be struck off or, for
a number of other reasons fail to continue to hold a practising
certificate. In these circumstances, the Fees Committee is at
present powerless to help counsel whose fees still remain
outstanding but the problem is being investigated. Indeed, it is
hoped to arrange, in consultation with and co-operation of the
Law Society, a thorough revision of the current agreed Joint
Statement in the light of experience in the operation of the
current Statement.
Members are reminded that complaints about unpaid fees
should be made to the Bar Council not later than four (4) years
after the date of the memoranda of fees, otherwise the fees may
be regarded as stale.
Any Junior member to whom is passed a brief from another
barrister should always take particular care to confirm direct
with the instructing solicitor 1. that he or she is in fact formally briefed in the matter, and
2. that suitable arrangements for payment of his or her own
fees are agreed.
It frequently occurs that a barrister receiving a brief will
notice reference in some form or other to another barrister's
previous involvement in the same matter. In those circumstances
members are reminded of their obligations under Rule 64.1
which provides 'Where a barrister who is asked to accept a brief or who has
accepted a brief discovers that any other barrister has been
briefed in any capacity whatsoever in connection with the same
matter or substantially the same matter, whether on appeal or in
other proceedings, and whether briefed by the same solicitor or
not on behalf of the same client or one or more of the same
clients, he shall not accept or continue to retain the brief until he
is satisfied that the fees of that other barrister have been paid or
that the other barrister is satisfied with any arrangements made
with regard to his fees, or consents to his accepting or continuing
to retain the brief.'
Members are also referred to Rules 62.2, 64.3 and 64.4.
2. Scales and Loadings
The last increase in the Supreme Court scale was on 1
September 1987. Since then there has been an increase of
approximately 25% in the District Court scale of fees from 9
February 1988.
The District Court accepted a substantial increase in the
rates of country loadings from 2 June 1988. A corresponding
increase has been accepted in principle by the Supreme Court.
The formal implementation of that increase will take a little
longer and it has been indicated that the Taxing Officers in the
Supreme Court will allow, pending the formal publication of a
New Practice Note, loadings for counsel for Supreme Court
towns at the recent increased District Court rate. A submission
is currently being prepared for a further increase in the Supreme
Court scale of fees together with a submission for a further
increase in loadings. Corresponding submissions will be made
to the District Court.
The Registrar in Bankruptcy has indicated that from 1 July
1988 fees for Counsel will be allowed on taxation at an increased
rate which was published.
The Legal Aid Commission also published a revised scale
ofjunior counsel's fees, representing a 20% increase, applicable
to work done on and from 1 July 1988.
The State Attorney-General's Department also indicated
that there had been a review of the fees paid to private counsel
briefed by the solicitor for Public Prosecutions to prosecute on
behalf of the Crown. The Attorney-General approved of a 20%
increase in those fees in respect of briefs delivered on and after
1 July 1988.
The Legal Aid Commission published a fresh scale of fees
to apply in Tenancy (Local Court) matters. They are intended to
apply to grants of Legal Aid after 1 November 1988. The Bar
Association initiated helpful negotiations with the Commission
for two variations to that scale. First, there had previously been
no fee allowed for a conference with a client as distinct from a
witness. That has now been included. Second, the refresher fee
was increased from the normal two-thirds to four-fifths after
negotiations concerning the inappropriately low rate of refresher
fee.
Members are assured that the Committee is mindful of the
need for continuous monitoring of fees and loadings. The
present Committee has tried so to arrange matters as to ensure at
least a regular annual review.
The journal of the
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In the matter of fee and loadings scales, the committee
would like to note in particular the continuing assistance of
Webb Q.C. who, although not a current Council member, has
much helped the current Committee as a co-opted member with
years of past experience of dealing with Courts and officials on
these ever sensitive matters. U
Law Reform
The Law Reform Committee of the Bar Council has, this
year, taken on a different role. Whereas the Committee in past
years has comprised a number of members of Council who have,
themselves, taken on the task of preparing submissions on behalf
of the Association to be made to Government with respect to
matters of law reform, the new Council determined in November,
1987 that its Law Reform Committee would comprise but two
members of Council whose function was to consider bills of the
New South Wales and, in some cases, Federal Parliament and
then determine whether there were matters raised in the bills
which required further consideration. If they did, then the
Committee would co-opt members of the Bar who were not
members of Council but whose expertise was such that they were
aptly qualified to prepare a submission on a particular bill for
consideration and adoption by Council as the submission to
Government of the Association.
The Bar's interest and concern, in this context, was to ensure
that the proposals contained in bills of the Parliament adequately
protected and safeguarded those members of the public who
would otherwise be affected thereby and to ensure that the
judiciary and the administration of justice generally were
safeguarded and enhanced. Except in certain particular matters,
the Bar has no part to play in the political decisions brought forth
in particular legislation provided otherwise that the rights of
affected citizens are properly and adequately protected.
It was in the light of this policy that the Committee has
considered the various bills of the Parliament. In respect of a
number of them it co-opted members of the Bar to provide
Council with a draft submission. In this respect, submissions
have been made by the Association on the following bills:
Anti-Discrimination (Amendment) Bill 1987
Companies and Securities Legislation (Federal)
Australian Securities Commission Bill 1987 (Federal)
Defamation (Criminal Defamation) Amendment Bill 1988
The Council has also made submissions to the Australian
Law Reform Commission on Class Actions. An ad hoc subcommittee has also been formed to prepare submissions with
respect to the draft New South Wales Evidence Bill.
Both the Council and the Committee have referred a number
of bills in the criminal law field tb the Criminal Law Committee.
That Committee will refer to its work in this regard in its own
report.
NSW Bar Association
The Committee would like to take this opportunity of
expressing its sincerest thanks and appreciation to those nonCouncil members of the Bar who have given so generously of
their time, expertise and experience in preparing submissions
which have been adopted by the Council on behalf of the
Association. The submissions so prepared have been of a
universally high standard and we are confident that they have
and will influence Government with respect to the legislation to
which they relate. U
Legal Education and Reading
Currently there are 136 barristers with a condition of
pupillage attached to their practising certificate. This represents
8.9% of banisters holding practising certificates in New South
Wales.
The Reading Committee is presently re-drafting the Reading
Rules to reflect the changes which have occurred as a result of
the introduction of the Legal Profession Act. A form of
certification by Masters will also be introduced early in 1989.
With the opening of some new Chambers and floors in 1989
most pupils seem to have been able to secure accommodation in
advance of, or soon after, commencing practice. However, with
an increase in the number of people coming to the Bar, the Bar
must continue to be vigilant in its search for suitable
accommodation.
The reading programme continues to emphasise the need
for practical training for banisters. For the past year or so each
pupil has participated as Counsel in a moot. Such performances
are recorded on video and in future each Master will review the
performance of his or her pupil.
An increasing number of lecture and workshop segments
are also being devoted to 'on their feet' training for readers with
the benefit of comment by Judges and Masters. The Masters and
Registrars of the Federal, Supreme and District Courts are
especially thanked for their interest in developing these segments.
The Reading Committee acknowledges with thanks the
continuing assistance of all those who give freely of their time to
lecture in the programme. U
Library
There has been a pleasing increase in the use by members of
the Library's collection and services in the past year. The
number of loans processed in the Library last year was 15,707;
10,351 of those items were borrowed by members from Selbome/
Wentworth Chambers and 5,356 by members from all other
chambers. The number of members of the Association located
in SelbornejWentworth Chambers was 681 and in other chambers
622. To help correct this imbalance and to encourage greater use
of the Library's facilities by members of the Association in
chambers outside Selbornejwentworth, it was decided to provide
special services to save those members the inconvenience of
personally attending the Library. Thus (a) A facsimile machine has been installed in the Library. Its
number is 231.1904. Members in chambers outside the Central
Business District may have materials faxed to them between
8.30 a.m. and 4.30 p.m. Monday to Friday. Members within the
Central Business District and outside SelbornejWentworth
Chambers may have use of this facility between 8.30 a.m. and 10
a.m. only when their staff is unavailable to attend the Library and
materials are required for Court. Members within Selbome/
Wentworth Chambes should have no problems in their staff
attending the Library. However, requests cannot be made by
floor juniors.
(b) A printed catalogue of theLibrary's major serial and textbook
holdings has been completed. A copy has been sent to all floor
clerks. Additional copies of the catalogue may be purchased for
$5 each. Cumulative supplements are published every three
months and supplied at no charge to subscribers. It is planned to
reprint the entire catalogue every two years.
(c) Telephone enquiries maybemade to ascertain the availability
of materials in the Library.
(d) Materials not held in the Library may be obtained by interlibrary loan.
The Library has recently acquired new sets of law reports
including the Canadian Criminal Cases, Building Law Reports,
Ontario Reports and Queensland Reprint Statute Service. These
acquisitions were made possible by a grant from the Law
Foundation.
The Library Committee has resolved that as the Library now
contains an extensive collection of reports and journals and due
to the vast increase in the cost to members of practice materials,
future acquisitions to the Library's collection will consist
primarily of practice materials rather than serials. However, the
Library will continue to subscribe to new Australian sets of
journals and reports. Multiple copies of popular texts will also
be purchased to meet user demands.
The staff is continuing the policy of expanding the legislation
holdings of the Library. The legislation collection now comprises
annual volumes and reprints of all States' and Territories' acts
and ordinances. Due to staff restrictions only the Commonwealth
and New South Wales acts have been consolidated with
amendments.
To further assist members, the staff compiled an index of
New South Wales rules and regulations. This index fills the gap
left by the published index after 1976. The Library's index will
be completed by the end of 1988.
Members would be aware that admittance to the Law Courts
Library is now strictly policed. Banisters' support staff can only
gain admittance by attending the course of instruction in the use
of the Library conducted by the Bar Association's Librarian. To
date 146 persons have attended the course.
In conclusion, it is appropriate for the Committee to publicly
recognise the continuing unstinting efforts of the library staff,
Mrs. Farmer, Miss Willard and Miss Ackland, during the past
year. Without their unfailing courtesy and assistance the library
could not possibly have provided the high standard of service to
members which has been achieved. The gratitude of all concerned
is accordingly acknowledged. U
Legal Aid
The past year was bitterly disappointing. Our main goal was
to secure decent fees in criminal matters. The Legal Aid
Commision evidently considered substantial increases,e.g. about
80% for District Court refreshers, to bejustified. Yet budgetary
constraints resulted in the scale being increased across the board
by a paltry 20% with effect from 1 July 1988. This matter was
discussed at a special meeting of the Baron 31 May 1988, and
it is anticipated that there will be another special meeting on this
topic soon.
The Committee continues also to assist members with
specific problems in their dealings with the Commission.
However, it is worth emphasising that any fees outside the set
scales must be agreed upon prior to the work being
undertaken. U
Professional Conduct Committee #1
PPC #1 has dealt with 30 complaints during the course of its
fortnightly meetings in 1988. Fourteen were dismissed or
resolved on the basis of a ruling, one barrister was counselled,
one was referred to a Disciplinary Tribunal and fourteen are still
current. One matter in which proceedings were commence in the
Court of Appeal for disbarment was discontinued as a result of
insufficiency of evidence. In NSW Bar Association v. Maddocks
the Court of Appeal delivered judgment removing a barrister
from the Roll* and in a further matter proceedings for disbarment
are still pending.
The nature of the complaints included the propriety of
counsel's conduct in the cross-examination of witnesses during
an inquiry, matters of competence in the pursuit of a client's
interests during an arbitration, the improper solicitation of fees
relating to a local court case, the propriety of certain advice
where criminal proceedings may be brought, the failure to have
in attendance and obtain instructions through a solicitor and the
impropriety of self advertisement.
In the course of investigation of some complaints there was
revealed in some instances a lack of comprehensive awareness
and understanding of the Bar Rules. The breadth of Rule 21
which provides that:
"A barrister shall not engage in unprofessional conduct or
do anything contrary to the standards of practise becoming
a barrister"
The journal of the
was considered in a number of complaints. The Bar's attention
should also be drawn to Rule 10(1)(b) dealing with the return of
a brief, Rule 15 relating to incompatible vocations, Rule 29B
prohibiting direct soliciting of fees from a client, Rule 33 which
defines the limited circumstances in which an instructing solicitor
may be dispensed with, Ru1e49(1) relating to pleadings alleging
fraud or other serious misconduct and Rule 67 relating to
requests from the Bar Council or a committee of the Council.
The Committee also considered a number of non-disciplinary
type matters in which rulings were requested as to the propriety
of certain conduct. There were a small number of requests for
urgent oral rulings. Members are encouraged in areas of
uncertainty or complexity as to their obligations or duty as
counsel to avail themselves of the opportunity of seeking the
guidance and assistance of one of the Professional Conduct
Committees.
Once again PCC #1 was greatly assisted by Sir Frederick
Deer whose contribution has been significant particularly in the
areas involving deliberation upon mattes touching the public
perception of the Bar and maintenance of the high standards of
the Bar. The Committee also takes this opportunity to record its
appreciation for the efficient assistance of Yvonne Grant and the
Registrar. U
* (See separate report this issue - Ed.)
Professional Conduct Committee #2
Since PCC #2 was reconstituted following the 1987 Bar
Council elections, ithas received 24 complaints against barristers.
Of these, 10 have been dismissed, 5 have been referred to
Disciplinary Tribunals (including 1 referral to a statutory
Disciplinary Tribunal under the Legal Profession Act, 1987) and
9 are still under investigation. The complaints have included 5
arising out of workers' compensation proceedings (of which 3
have been dismissed and 2 have been referred to Disciplinary
Tribunals), 4 arising out of family law proceedings (of which 1
has been dismissed and 3 are current), 2 arising out of criminal
proceedings (both of which were dismissed), 3 arising Out of
personal injury proceedings (of which 2 have been dismissed
and 1 is current) and 2 arising out of bankruptcy proceedings
(both of which are current). The balance have included complaints
arising out of medical negligence proceedings (dismissed), a
building case (current), a Local Court arbitration (current), and
an alleged contempt of court (referred to a statutory Disciplinary
Tribunal).
A feature of the complaints arising out of workers
compensation and family law proceedings has been an apparent
lack of understanding on the part of complainants as to what has
transpired. Sometimes these misunderstandings appear to be
due to a failure on the part of the legal advisers to ensure that the
client is kept fully informed and that some of the less familiar
practices (such as morning tea with the Judge) are fully explained.
The Committee cannot stress too strongly that in all probability
NSW Bar Association
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many complaints would not be made if there was a greater degree
of communication between counsel and client so that the latter
is made fully aware of and clearly understands the nature of the
proceedings, especially where settlement occurs. In this respect,
it is vital that any such communication take place in the presence
of counsel's instructing solicitor so that there is corroboration of
counsel's explanations to the client in the event of any future
misunderstanding on the client's part. U
Professional Conduct Committee # 3
PCC #3 had carriage of 23 cases during this year. They
comprised matters in the areas of Fees (1), Coronial Inquests (2),
Workers' Compensation (3), Family Law (2), Ethics (5), Industrial
Commission (1), Criminal Law (5),Personal Injuries (2), Building
(1) and Uncategorised (1). Of those 23 matters, 13 were
dismissed or resolved, 2 referred to a disciplinary tribunal adn 8
remain current.
Following are examples of some of the matters which have
come before PCC #3 in the course of the year.
1. A barrister was briefed to appear for a client in a committal.
The committal commenced in the beginning of May 1988 and
was adjourned, part-heard, to September 1988. A significant
piece of evidence comprised entries in the client's diary. The
barrister had access to that diary shortly before and during the
May hearing. A policeman gave evidence, in May, about one of
the entries in the diary. During the adjournment between May
and September the barrister had access to the diary for a short
time to assist him to prepare his cross-examination. His solicitor
and client also had access. When the case resumed in September
the same policeman went into the witness box again and gave
evidence that the entry he had formerly referred to had been
altered since the May hearing. There was the obvious implication
against the barrister, ad others, that he or they had made the
alteration. The barrister sought, and was granted, an adjournment
in order to obtain advice from the Bar Association and was also
granted leave to withdraw from the case. The barrister asked
whether he could, in any circumstances, continue to act for the
client in the committal proceeding. He was advised that there
appeared to be no alternative but for him to return the brief in
circumstances where it was obvious he would have to give
evidence in the committal of the fact that he had not been a party
to altering the entry in the diary. It ws also recommended that
hemight atempt to seek out a member of the bar of equivalent
seniority and ask that member to take his place and to read the
transcript without charging a fee for the reading ( but charging a
fee for the appearance).
2. A barrister was offered a brief in a common law industrial
accident claim upon the basis that he would not be paid if the
claim was lost. The barrister was available on the days upon
which the case was listed for hearing but did not want to take the
brief upon the basis on which it was offered. He was advised that
he was not obliged to take the brief on that basis.
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would be subject.
3. A barrister was contacted directly by a client by telephone
one Friday evening. The client rang him from a hospital to which
he had been compulsorily committed. The barrister advised the
client to contact a solicitor. The client evidently had limited
access to a telephone so the barrister assisted the client by
contacting a solicitor on behalf of the client. It was a Friday
evening at the end of term and the banister was at function. The
client needed to be in contact urgently with a solicitor in order to
gain curial assistance for his release. Rule 30 of the Bar Rules
provides that a "barrister shall not save in urgent and exceptional
circumstances retain a solicitor on behalf of any person." It was
resolved that the case fell within the "urgent and exceptional
circumstances" provision of that rule.
4. Proceedings in the Compensation Court sometimes give
rise to particular complaints. Many of those complaints come
down to communication between the barrister and the client.
Some complaints concern the circumstances of discussions with
the client regarding regarding settlement with particular reference
to the time and pressure involved. Other complaints concern the
client being informed for the first time on the hearing day of
significant difficulties in the case when no mention was made of
such difficuilues at preliminary conferences. Other complaints
somtimes concern comments made by a barrister regarding the
state of preparation of the brief. Particular complaints were
usually dismissed after full reports from the barrister but they
emphasise the need for clear and patient communication between
the barrister and the client. U
Practising Certificate Committee
On 1 January, 1988 the Legal Profession Act 1987 came
into effect. The President in discussions with the AttorneyGeneral sought and was granted a deferment of the effective date
for Practising Certificates for banisters from 1 January 1988 to
1 July 1988. This was done in order to synchronise the
commencement of the new system with the commencement of
the Bar Association's financial year, the 1988/89 budget and to
enable the Association to establish a computer system for its
Membership and Practising Certificates records. A timetable for
the issue of Practising Certificates by 1 July 1988 was prepared
and implemented.
The Committee has had carefully to consider the provisions
of the Legal Profession Act 1987 governing Practising Certificates
in making recommendations to the Bar Council with respect to
formulation of Council policy on the concept of "practising as a
barrister" concerning the issue and refusal of certificates.
As of 20 September 1988 Certificates had been issued, in
the following categories:(a) Restrictions:
1. Parliamentary Counsel (QC's) +
Statutory Appointments
2+6
132
2. Pupils
3. Academics
29
4. Junior Parliamentary Counsel
11
59
(b) Crown Prosecutors
18
(c) Public Defenders
(d) Practising Barristers/QC's (without restrictions) 1,274
1,531
Total Certificates Issued
The following table lists the categories of those who were
refused Practising Certificates under the respective provisions
of the Act
27
Government Employed Persons
10
Legal Advisors for Companies
Interstate/Overseas Practitioners
5
6
Not Presently Practising
Parliamentary Counsel refused [s.32(1)
4
but offered S32(4)]
Persons refused unrestricted S.32(1) Certificates
and offered Academic Certs.
3
55
Total
In October 1987 the number of practising banisters who were
members of the Association was 1,092
In October 1988 the number of practising banisters who are
members of the Association is 1,279
The number of non-practising banisters is 277. U
One of the early tasks of the Committee was to settle the
form of the Practising Certificate and application and in the
course of so doing to assist in refining the specifications for the
computer programme.
It was also necessary for the Committee to establish the categories of practising banisters who would be entitled to a practising certificate and the restrictions if any to which they
I
Full reportsfrom the Common LawLiaison & Listing, Finance,
Criminal Law and Commercial Liaison and Rules Committees
were published in the Spring issue of Bar News - Ed.
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The journal of the
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The Role of the Judiciary
In 1987 the University of New South Wales published a special
issue ofitsLawJournal devoted to the subject of "The Judiciary".
The Chief Justice of the High Court, Sir Anthony Mason A. C.,
K.B.E. wrote the foreword . *
The judiciary continues to be a fashionable topic of
discussion. The essays in this volume pursue some of the themes
of contemporary debate here and overseas. The essays are
perceptive and instructive, none more so than Mr. Justice Thomas'
"Epistle from a Judge on Circuit". It provokes me to some
reflections on the role of the judiciary in the light of its past and
present condition.
One of the Epistle's messages is that the status and importance
of the judiciary, as perceived by the community, have diminished
significantly in recent times. Why? Partly, I suppose, because
we live in a brave new world, created by the media, a world of
froth and bubble and sensation, of fleeting images and
impressions. There is no place here for detailed and accurate
reporting of court cases, with a focus on the legal issues, though
such reporting was once a feature of our newspapers, metropolitan
as well as provincial and local. Nowadays sensational and
bizarre cases are reported. So are those which concern highprofile personalities. Witness a recent contest in the Supreme
Court before Hodgson J. over the ownership of a luxurious
harbourside mansion bearing a miscellany of exotic names like
"Toison sur Mer" and "Paradis d'Or", names which evoke
dazzling visions of halcyon days and glittering nights at Cap
FerratorCap d'Antibes. One counsel was reported as describing
his opponent's submission as sounding like a "press release".
The submission attracted much publicity. Perhaps the media
thought it was a press release. There followed a flurry of press
statements by the parties or their legal advisers culminating in
the issue of a writ or writs for defamation and then - mercifully
- silence.
Of course there are reports of important cases, but the
quality of the reporting, particularly on television, leaves much
to be desired. Take the recent television coverage of the
application for an interlocutory injunction relating to the Dainiree
rain forest which I heard in the Coal Industry Tribunal premises
in Sydney. The reporter stated quite accurately, if a little
resentfully, that the hearing took place in a small room above a
coffee lounge. Meanwhile the camera lingered on the entrance
to a rather undistinguised looking coffee lounge. For reasons
never explained the camera later focussed on the majestic
entrance to the Law Courts Building with its coat of arms while
the narrator spoke of the case without managing to disclose what
were the actual issues. This was understandable if you were
watching, rather than listening. Our narrator was enmeshed in
a time and place warp for the camera revealed the stern visage of
Theo Simos Q.C. manfully leading the Spycatcher cast into the
Supreme Court many months earlier. There were some shots of
me purposefully striding down a Street and of "Geoff Davies
Q.C.", to use the reporter's description, at an intersection,
looking anxiously at the heavens as if half-expecting a
Messerschmitt to dive out of the sun. Then some revealing
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NSW Bar Association
footage of the back of our respective heads - more revealing in
my case than his. The comparison was entirely favourable to
Geoff Davies Q.C. His hair, though short, was abundant and
kempt - like the Daintree as depicted in the film clips which were
part of the report. All this is no doubt explained by the fact that
it was Christmas Eve, a time when newspapers and television
stations are on the look-out for filler material - a speech by Mr.
Justice Kirby or an "in-depth" report on the High Court, these
being staple elements in our end of year newspaper reading.
These incidents indicate that, if court proceedings lack
dramatic impact, the media will report the "real" Story behind the
proceedings, using them as an element in that story. The media's
quest for material with dramatic impact no doubt encourages
some litigants to present court cases in such a way that will result
in favourable publicity and it encourages plaintiffs to issue press
statements placing the commencement of proceedings against a
favourable background. The media's treatment of court cases
tends to trivialize the issues and to increase the risk that litigation
will become a vehicle, or even a theatre, for public relations or
political exercises.
Quite apart from the problems of this brave new world, the
area of responsibility of the judiciary, using that term in its
restricted sense, has contracted vis-à-vis the executive. With the
growth of the welfare state the citizen's rights against government
are probably more valuable than his rights against fellow citizens.
And rights against government increasingly depend on the
decisions of officials and tribunals. There is now a vast network
of tribunals outside the established court system. Sometimes
specialist tribunals exercise jurisdiction which could as readily
be entrusted to the courts. Indeed, some so-called tribunals are
in truth courts, the dividing line being by no means clear.
Tribunals are deciding an ever-widening range of interesting and
important questions, including questions of individual and
fundamental rights such as discrimination, equal opportunity
and freedom of information, whereas the courts are doing work
of a traditional kind. Some judges tend to regard this work as
"legitimate" in the sense in which the Shakespearean actor refers
to the stage as opposed to film, because the work involves the
application of settled principle to facts as found. This tendency,
which reflects the judicial model of a bygone era with its sharp
distinction between law and policy, is an inducement to confer
new jurisdiction on tribunals rather than established courts.
Another reason for taking this course is the belief that court
procedures are too protracted and too costly.
What I have just said illustrates how our thinking is influenced
by notions of status rather than function. We tend to associate the
judiciary with those persons who are called judges. But if we
look at the matter as one of function, not of status, the judiciary
includes not only magistrates but all those persons who exercise
judicial power and determine the rights of parties.
The article by Mr. Briese indicates that at long last appropriate
steps are being taken to enhance and protect the independence of
magistrates as integral elements in our judicial system. Why is
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it that law journals, as well as newspapers, devote so much space
to the High Court and so little to the Magistrates' Courts? The
High Court is predominantly a forum for the resolution of
institutional conflicts to which governments, statutory authorities,
corporations and trade unions are parties. The Magistrates'
Courts dispense justice at the grass-roots - a function of vital
importance in a democracy and one deserving of the closest
scrutiny.
I have ventured a long way from Mr. Justice Thomas and
his Epistle. What I have written will scarcely allay his misgivings.
The point is that, if the importance of the judicial function is
under-estimated today, it is because the citizen does not see the
courts as a valuable source of protection of his rights, particularly
his rights against the government. And, assuming this to be so,
the fault perhaps lies not in the stars but in ourselves and in the
reluctance of judges to embrace any jurisdiction by way of
enforcement of individual or fundamental rights. Yet it is a
jurisdiction exercised by courts in many other countries with the
result that those courts are visibly and tangibly identified with
the protection of the rights of the citizen. In Australia, we have
not seen this as a function of the courts or the judiciary.
Possibly the time has come for viewing the judiciary and its
role through a wider lens and to place more emphasis on the
primary role of the Supreme Courts as courts of review. In this
way the value of the work of the judicial branch of government
in the widest sense of that expression could be more clearly seen
and appreciated. This development would bring a greater sense
of unity to the judiciary, greater symmetry to our court structure
and a more uniform elaboration of the principles of law. C]
* Republished with the kind permission of the Chief Justice Si
Anthony Mason and the EditorialBoard of the University ofNew
South Wales Law Journal. The issue of the Law Journal fro
which the foreword is reprinted is available from the Faculty o
Law, University of New South Wales, P.O. Box 1, Kensington.
NSW 2033.
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• Criminal Liability of Professional Advisers
Speaking at the A.B.A. Conference in Townsville, R.V. Gyles
Q.C. examined the fine line between legal advice and legal
impropriety.
In recent years a number of professional advisers have been
charged with criminal offences. Solicitors, accountants and a
barrister have been charged with criminal offences in relation to
income tax and sales tax schemes and a number have been
convicted. A barrister has been convicted of conspiring with
drug dealers. A solicitor was charged with conspiring with
clients to evade immigration laws. Another solicitor was charged
with conspiring with clients to evade
taxes on interstate hauliers. These are
only some of the examples. Whereas,
upon closer examination, a number of
these cases do not relate to the
consequences of giving professional
advice, they have occasioned concern
amongst professionals, and there is a
perception that a new and unwelcome
hazard has been added to professional
practice.
The case which has undoubtedly
caused the greatest controversy in the
legal profession is the prosecution of
a leading Victorian silk in connection
with advice he gave concerning a tax
scheme. [1.] As the case is unresolved
great discretion is called for in
commenting upon it, but it has been
the subject ofjudgments by the Federal
Court and findings by the magistrate
hearing committal proceedings and it
is impossible to discuss this topic without some reference to it.
I propose to deal with professional advice given before or
during the transactions giving rise to the allegation of breach of
the law. I will not deal with the different problems which a
lawyer faces when advising a client who has already done
something which might constitute a breach of the law.
As Government regulation of the community inexorably
increases with more and more statutes making conduct illegal,
those affected - particularly those whose livelihood depends
upon it - require and demand advice as to how best to regulate
their affairs in the light of these statutes. The topic is by no means
confined to lawyers. The accountant advising upon tax schemes
or the form of company accounts, the merchant banker advising
on a takeover, the stockbroker advising promoters of a public
company floation, the architect, engineer or town planner advising
as to town planning and building regulations, the valuer or other
expert providing an opinion for inclusion in a prospectus are just
1. O'Donovan v. Forsyth (1988) 76 A.L.R. 97
2. R. v. Ryan (1984) 55 A.L.R. 408
NSW Bar Association
some illustrations.
Indeed, if, as seems possible, the National Companies and
Securities Commission (or its successor) and the Trade Practices
Commission decide to place more emphasis on actually enforcing
the laws which they administer than hitherto, the problems will
become more acute - particularly perhaps for those advisers not
bound by a clear set of professional ethics who charge on results
rather than on a time basis.
As I shall seek to demonstrate later, the Courts have said
time and again that a client is entitled to
order its affairs to its best advantage having
regard to the law as it stands. If that is
correct then lawyers and other advisers
have a legitimate role in assisting the client
to do so. The ethics of doing so may be
debated, as they have been, but the
lawfulness of so doing should not. What,
then, are the problems?
The most obvious is the danger of
the adviser becoming or being seen to
become aparticipantin the transactions - to
be one of the organisers or entrepreneurs.
The degree of participation can vary. It is
most obvious when the adviser becomes an
actual "equity" principal or partner in the
activity, taking a share of the proceeds. It
may be by acting as a lieutenant in taking
active steps going beyond advice to assist
the activities and reap consequent rewards.
Examples could include the referring of
clients in return for secret commissions, the
provision of a respectable front through the provision of offices
and other services, by "warehousing" a parcel of shares on behalf
of a client to give a false appearance to a transaction; utilising a
trust account as the "bank" for the illegal activity; the creation of
a set of false and misleading documents or records; or actually
making corrupt approaches to officials. [2]
Brennan J. in Leary v. Federal Commissioner of Taxation
(1980) 32 A.L.R. 221 at 239-40 said:
"The evidence in this case suggests that the scheme was
promoted by members of the legal and accounting professions,
who assumed the mantle of entrepreneurs. - it has not been
material to consider whether it is possible for the role of a
professional adviser and the role of an entrepreneur properly
to coincide or overlap, but the apearance of solicitors
performing these respective roles in the present case leads
me to invite attention to significant differences between the
two functions. These differences do not arise out of any
judicial view as to the lawfulness or morality of tax avoidance
-. They arise because the field of professional activity is coextensive with the lawyer's professional duty. That duty is
to give advice as to the meaning and operation of the law and
to render proper professional assistance in furtherance of the
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client's interests within the terms of the client's retainer. It
is a duty which is cast upon a lawyer as a member of an
independent profession, whether his services are sought with
respect to the operation of taxing statutes, the provisions of
the contract, charges under the criminal law or any other of
the varied fields of professional concern. It is a duty which
arises out of the relationship of lawyer and client.
But activities of an entrepreneur and the promotion of a
scheme in which taxpayers will be encouraged to participate
falls outside the field of professional activity; those activities
are not pursued in discharge of some antecedentprofessional
duty. Entrepreneurial activity does not attract the same
privilege or the same protection as protect professional
activity; and the promotion of a scheme in which particular
clients may be advised to participate is pregnant with the
possibility of conflict of entrepreneurial interest with
professional duty."
If the activity is in fact illegal then the adviser who
participates becomes liable either as a "common purpose"
principal in the substantive offence or as a co-conspirator.
In my view the giving of advice known to be false or
misleading to the participants in an illegal action in order that it
may be used by the participants to be shown to third parties in
furtherance of the activity, or by providing such advice directly
to third parties at the request of the participants would be quite
sufficient to render the party giving it a participant in the
transaction for the purposes of the criminal law. It may also, of
course, be in itself a substantive offence. Examples which come
to mind are lawyers' opinions as to validity, architects or
engineers' certificates, auditors' certificates, and expert's reports
for inclusion in a prospectus.
What then of some evidence which emerged in a trial of,
inter alia, an accountant and a solicitor charged with conspiring
to defraud the Commonwealth by promoting and implementing
a scheme to evade sales tax. [3.] The person who devised the
scheme (a former Commonwealth Taxation Office employee)
obtained an opinion from senior counsel to the effect that if the
scheme were implemented neither wholesalers nor retailers who
entered the scheme would incur a liability for sales tax. This was
apparently what was known as a"marketing" opinion deliberately
given in order that it be used to "sell" the scheme by promoters
to wholesalers and retailers. On the same day the same senior
counsel gave a second or "internal" opinion to the deviser of the
scheme headed "Supplementary Advice", the effect of which
was that he was not optimistic about the success of the scheme
at least so far as the promoters' entities were concerned.
3. R. v. Edwards and Collie Court of Criminal Appeal
(Victoria) 6.7.87
4. R. v. Lawrence (1981) 38 A.L.R. 1
A barrister was called to give evidence on behalf of the
solicitor. He was asked whether he was aware of a practice that
had grown up whereby counsel gave two opinions in respect of
a tax avoidance scheme. The question was objected to as
irrelevant, but it was said to be the foundation for further
questions as to whether it would be regarded as proper for
counsel to advise in the "marketing" opinion that a scheme was
effective, and in another opinion to express a different view. The
trial judge refused to allow the witness to give his view of the
propriety of the suggested course, but said that evidence of the
practice of giving a "marketing" and "internal" opinion might be
adduced. This ruling was upheld in the Court of Criminal
Appeal.
What answer would the barrister have given? It is possible
that counsel could genuinely hold the opinion that a tax scheme
would be effective for those third parties who "entered into" it,
even though the "scheme" might not avoid tax being levied upon
one of the promoters' entities. It might also be possible for the
marketing opinion to be bona fide without any qualification. As
the text of the two opinions are not reproduced in the report it is
not possible to express any view about the particular case.
However, if, looking at all of the circumstances, a jury came to
the conclusion that it was false or misleading to promulgate the
unqualified "marketing" opinion knowing it would be used as
such, then they would in my view be entitled to regard the
counsel concerned as a party to the activities of the promoters of
the scheme.
The next area of jeopardy is where the professional adviser
restricts himself to giving advice which he genuinely believes,
and only charges his normal fee for doing so, but gives advice
designed actually and directly to assist a client in a client's
disclosed illegal purpose or in concocting the criminal activity.
A lawyer who coaches drug couriers on a story that they
should tell in the event of apprehension, [4] advises as to
extradition arrangements, gives guidance as to the covering up
or destroying of evidence, counsels the construction of sham
transactions or documents, or outlines the best means of corruption
of public officials without being detected and so on is plainly
implicated.
The most illuminating discussion of this topic is in R. v. Cox
and Railton (1884)14 Q.B.D. 153. The decision turned upon the
existence or otherwise of legal professional privilege, but the
reasoning is relevant. Some of the relevant passages are as
follows:
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"In order that the rule (legal professional privilege) may
apply there must be both professional confidence and
professional employment, but if the client has a criminal
object in view in his communications with his solicitor one
of these elements must necessarly be absent. The client
must either conspireith his solicitor or deceive him. If his
criminal object is avowed, the client does not consult his adviser professionally, because it cannot be the solicitor's
business to further any criminal object. If the client does not
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avow his object he reposes no confidence for the state of the
facts which is the foundation of the supposed confidence,
does not exist."
"Where a solicitor is party to a fraud no privilege attaches to
the communication with him upon the subject, because the
contriving of the fraud is no part of his duty as a solicitor; I
think it can as little be said that it is part of the duty of a
solicitor to advise his client as to the means of evading the
law."
"The reason on which the rule is said to rest cannot include
the case of communications, criminal in themselves, or
intended to further any criminal
purpose, the protection of such
communications cannot possibly be
otherwise than injurious to the interest
of justice and to those of the
administration of justice. Nor do
such communications fall within the
terms of the rules. A communication
in furtherance of the criminal purpose
does not"come into the ordinary scope
of nrofessional emnlovment""
Usually, the "borderline" cases will involve potential
breaches of a statute or allegations of evasion of statutory duty.
In Bullivant v. Attorney General (Victoria) [1901] A.C. 196,207
Lord Lindley said:
"As I have said, there are two ways of construing the word
'evade': One is, that a person may go to a solicitor and ask
him how to keep out of any Act of Parliament
- how to do something which does not bring
him within the scope of it. That is evading in
one sense, but there is nothing illegal in it.
The other is, when he goes to the solicitor and
says, 'tell me how to escape from the
consequence of the Act of Parliament,
although I am brought within it.' That is an
act of quite a different character."
The client
must either
conspire with
his solicitor
or
deceive
"The only thing which we feel
authorised to say upon this matter is,
that in each particular case the Court
must determine upon the facts actually
given in evidence or proposed to be
given in evidence, whether it seems probably that the
accused person may have consulted his legal adviser, not
after the commission of the crime for the legitimate purpose
of being defended, but before the commission of the crime
for the purpose of being guided or helped in committing it.
We are far from saying that the question whether the advice
was taken before or after the offence will always be decisive
as to the admissibility of such evidence."
(See also: O'Rourke v. Darbishire 1920 A.C. 581 at
613,621)
All of that is relatively straightforward when what is planned
is a murder or a rape or a bank robbery or a drug importation. If
the disclosed object is to defraud creditors, or the revenue, or
investors, whilst the advice may be more sophisticated, the
criminality isjustasplain. The lawyer, orotheradviserconcerned,
has become a party to the criminality.
The real difficulty exists where no overt criminal purpose is
disclosed by the client, but a course of conduct is posed or
devised which may be a breach of the law. The client may
propose the scheme and seek advice as to its legality; the client
5. Baker v. Campbell; see also Bullivant v. Attorney
General (Vic.) (1901) A.C.
NSW Bar Association
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may propose his objectives and seek advice as to the best manner
of effecting them; or there may be a joint consideration of the
problem by adviser and client arriving at a joint solution. If it
turns out that the scheme or conduct is illegal what is the position
of the adviser?
This passage was adopted by Gibbs
CJ. in Attorney General (N.T.) v. Keamev
(1985) 158 C.L.R. 500, 5134. The same
principle would apply to breaches of the
general criminal law. The passage I cited
from Brennan J., and the authorities to which
he referred are to the same effect. [5.]
Applying this principle, in my opinion there should be no
jeopardy in a lawyer giving bona fide advice that a proposed
course of action would not be a breach of the law, even if that
opinion is incorrect.
However, one learned commentator has recently expressed
the view that in these circumstances it would be open to a jury to
conclude that the client was relying on the lawyer's advice and
was encouraged to carry out the prohibited conduct by reason of
it and that thus the lawyer was an accessory before the fact of the
'principal's offence and liable to prosecution. [6.]
This proposition is both novel and startling, and, if correct,
would have extraordinary consequences. It would mean that no
citizen could obtain guidance from those qualified to give it as
to the lawfulness of a proposed course of action. It would give
rise to criminal liability in the adviser in circumstances where
there may well be no civil liability if there was no negligence in
forming the incorrect opinion.
The same learned commentator expresses the view that
when the lawyer, having knowledge of relevant facts, draws
such documents as are necessary to give effect to the advice, that
act constitutes aiding and abetting any offence which is
committed. This is apparently upon the view that by going
"beyond advice" the lawyer or the adviser necessarily "aids" the
commission of the offence.
As a proposition it is similarly novel and startling. It is a
proper function and duty of a lawyer to draft documents to effect
transactions. If a lawyer is asked to advise upon the legality of
proposed transactions, and, if in the affirmative, to draft the
necessary documents, it does not seem to me, with respect, that
drafting the documents adds anything to the substance of the
matter. In drafting the documents the lawyer certainly does not
step outside his proper professional role. That role is not
restricted to the giving of advice. In any event the documents add
nothing to the effect of the advice.
Pincus J. neatly made the point when he said in O'Donovan
v. Forsyth 76 A.L.R. 97, at 120:
"There is an 'underlying principle of the common law that
—a person should be entitled to seek and obtain legal advice
in the conduct of his affairs - without the apprehension of
being thereby prejudiced.' Baker v. Campbell (1983) 153
C.L.R. 52 at 114 per Deane J. That principle must be
weakened if the entitlement is to consult lawyers who are
under threat of prosecution if their advice turns out to be
wrong and the external reliance on the advice unlawful. In
Baker v, Campbell concern was expressed that the proper
functioning of the legal system might be inhibited by
compulsory disclosure of legal advice: See in particular per
Dawson J. (C.L.R. at 127, 128). The prospect of
imprisonment for giving advice held to be erroneous would
no doubt be an even more potent inhibition."
6. Mr. Justice McHu gh "Jeopardy of Lawyers and
Accountants in Acting on Commercial Transactions."
Taxation in Australia April 1988 p.542.
cf. R. Merkell O.C. "The Lawyer as a Client" Aust.
Business Lawyer Vol. 1 No. 2 p.1 1
J. Rppke "Aiding and Abetting, Inciting and
Encouraging Criminal Acts" Papers of Lectures
Centre for Commercial Law. Faculty of Law, Monash
University October 1985.
7. See also R. v, Tann p us (1987) 10 N.S.W.L.R.303;
Gollan v. Nugent (1987) 5 N.S.W.L.R. 166;
Gillick v. West Norfolk A.H.A. (1986) 1 A.C. 112
particularly Lord Scarman 190:
The bona fide exercise by a doctor of his clinical
judgment must be a complete negation of the guilty
mind which is an essential ingredient of the criminal
offence of aiding and abetting the commission of
unlawful sexual intercourse."
The answer surely lies in an analysis of the neces
ingredients to be found before a person can be implicated as a
accessory - whether it be aiding, abetting, counseffingorprocuring
or any of the synonyms which express those meanings.
In Giorgianni v. R. (1984-85) 156 C.L.R. 473 at 479480
Gibbs C.J. adopted the following passage from Judge Learn
Hand in United States v. Peoni (1938) 100 F. 2d 401 at 402))
"It will be observed that all these definitions have nothin
whatever to do with the probability that the forbidden resul
would follow upon the accessories conduct; and (that) the
all demand that he in some way associate himself with the
venture, that he participate in it as in something that h
wishes to bring about, that he seek by his action to make i
succeed. All the words used - even the most colourless
'abet' - carry an implication of purposive attitude towar
it."
His Honour also adopted a statementby Cussen A.C.J. in R.
v. Russell (1933) V.L.R. 59 at 67, (the same passage being cit]
by Mason J. at 493):
"All the words abovementioned are, I think, instances of on
general idea, that the person charged as a principal in th
second degree is in some way linked in purpose with the
person actually committing the crime, and is by his words or
conduct doing something to bring about, or rendering mor
likely, such commission." [7.]
As in my view the authorities establish that a lawyer has
proper professional role in advising clients as to the lawfulness
or otherwise of proposed action, and in drafting documents to
effect transactions regarded as lawful, the exercise of thatft
professional function cannot, without more, amount to any
purposive association or any evidence of it. The simplistic
argument that says that the client would not proceed if the lawyer
advised that the course of action was unlawful, and that therefore
a lawyer's advice that it is not unlawful is a cause of the client's
actions and thus associates the giver of advice in purpose with
the client is, it is submitted, both bad in logic and in law. In short,
a lawyer giving bona fide advice, and drafting documents to give
effect to that advice, does not in any relevant sense cause the
client to act in accordance with the advice.
It is necessary to look to the authorities relied upon in
support of the proposition being examined.
In National Coal Board v. Gamble, [1959] Q.B.11 a
weighbridge operator, employed by the Coal Board, was held
guilty of aiding and abetting the driving of an overloaded lorry
on the highway when, knowing of the overload, he completed
the sale by handing the weight ticket to the driver to give to the
purchaser of the coal. Whilst it is true that there was no
suggestion that he was inciting, urging or encouraging the driver
of the vehicle, he did an act which actually facilitated the offence
before it took place which he had no duty to do, and indeed a
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positive duty not to do.
In R. v. De Marnv [1907] 1 K.B. 385 the conviction of an
editor for aiding and abetting the sale of obscene books by
publishing advertisements relating to the sale of those books was
upheld. Again, whilst there was no evidence of actual incitement
or encouragement, a positive act was done which actually
encouraged the offence in circumstances where there was no
proper role or function to do so.
In Wilcox v. Jeffre y [1951]1 All E.R.464, a musician was
allowed to enter England on condition that he did not take
employment.
However, he
performed at a concert at which
the appellant was present, and the
latter wrote a laudatory article
about performance. The appellant
was aware of the terms of the
660
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musician's entry into England. It
was held that the conduct of the
appellant in going to the concert
and writing an article about it was
evidence from which the
magistrate could find that the
appellant's presence at the concert
had aided and abetted a breach by
the musician of the Aliens Order,
1920. Even if the decision be
correct (a difficult assumption to
make) it relates to voluntary actions
by the journalist not in the
performance of any function or
duty.
and called on the purchaser to complete. The builder was
convicted of offering the house for sale at a price in excess of that
permitted. The three partners were charged with aiding and
abetting in the commission of that offence. The two partners
who did not know of the facts were held to be not guilty because
they did not know the essential matters which constituted the
offence. The case is commonly cited for that proposition. It is
worth setting out the whole of the judgment in relation to the
third partner.
"With regard to their partner, the third defendant, a different
state of affairs arises. His client, the builder, told him a story
which, even if it were true, was on the
face of it obviously a colourable
evasion of the Act. The builder told
him that he had received another 250
pounds, that he had placed the sum in
a separate deposit account, "and that it
was to be spent on 'payment for work
as and when he, the builder, would be
lawfully able to execute it in the future
on the house on behalf of the said
purchaser.'" It seems impossible to
imagine that anyone could believe such
a story. Who has ever heard of a
purchaser putting money into thehands
of the builder when he bought a house
h
from him because he might want some
99
work done thereafter? Surely, if the
builder did not think that the purchaser
could pay for the work, he would say:
"Will you pay something on account?"
A story of that kind, on the face of it,
is a mere colourable evasion of the Act. It is more than
likely, I think, that, in reading the Act, the third defendant
did not read as carefully as he might have done sub-s.5, of
s.7. If he had read that subsection carefully, I cannot believe
that he - or indeed any solicitor, or even a layman, - would
not have understood that the arrangement which the builder
said that he had made was just the kind of thing which that
sub-section prohibited.
gra am en of
e ecisio n was that
the solic :itor had
actuall y taken
art I n the
transact ion., and
F ere by
iinp1i ated.
The decision in Johnson v. Youden [1950] 1 K.B. 544
requires closer examination. The Building Materials & Housing
Act 1945 (United Kingdom) provided:
(1) "where a house is being constructed under the authority
of a licence granted for the purposes of a Defence Regulation
and the licence.., has been granted subject to any condition
limiting the price at which the house may be sold ... any
person who, during the period of four years beginning with
the passing of this Act, sells or offers to sell the house for a
greater price than the price so limited ... shall be liable on
summary conviction to a fine ... or to imprisonment....
(5) In determining for the purposes of this section the
consideration for which a house has been sold or let, the
Court shall have regard to any transaction with which the sale
or letting is associated A builder offered a house for sale, and obtained from the
purchaser 250 pounds which was to be in addition to the price
permitted by law. The builder instructed a firm of solicitors to
act for him in the sale. Two of the partners did not know that the
builder had received the extra 250 pounds; justbefore completion
the third partner heard about that payment. He called upon the
builder for explanation, read the Act, formed the opinion that the
receipt of the extra 250 pounds was in the circumstances lawful,
NSW Bar Association
'How could anybody say that the story which the builder
told the third defendant was not a story with regard to a
transaction with which the sale was associated? If that subsection had been read by the third defendant and appreciated
by him, he would have seen at once that the extra 250 pounds
which the builder was obtaining was an unlawful payment
but unfortunately he did not realise it, but either misread the
Act or did not read it carefully; and the next day he called on
the purchaser to complete. Therefore he was clearly aiding
and abetting the builder in the offence which the latter was
committing."
In my view the gravamen of the decision was that the
solicitor had actually taken part in the transaction by calling
upon the purchasers to complete, and was thereby implicated. It
thus has nothing to say about the question that I am presently
considering. I agree, however, that, if correct, the decision does
Bar News, Summer 1988 -27
have serious consequences for solicitors, and others, who are
actually involved in effecting transactions on behalf of clients if
those transactions involve any illegality,
I would respectfully suggest that the decision would not
necessarily be followed if the participation is bona fide. The
point hardly appears to have been argued, and the trend of
modem authority would at least cast serious doubt upon the
actual decision.
very high rate is not likely to attract much sympathy. However,
we either know or have good reason to believe that opinions may
be used for many purposes, including disclosure to the other side
during negotiations; for the purpose of being shown to the police
or Crown authorities if a charge is contemplated or anticipated;
or for provision to various regulatory bodies including statutory
regulatory bodies in the event that the transaction is later
questioned.
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What if an opinion is given which represents the lawyer's
bona fide view of the law, including all
necessary qualifications, but is provided
on the basis that it isa"marketing opinion"
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- that it would be used by the client to
show third parties for the purpose of
inducing them to enter into the
transactions.
Whilst I have no doubt that there have been many abuses of
the so called "comfort" opinion, Iprefer the view that criminality
should turn upon the bona fide nature of the
advice, rather than the use which may be
made of it. If there is evidence that the advice
was not bona fide, and was purely a sham
comfort" opinion, then the necessary
preconditions for criminal liability would
normally be met.
The views thatl have expressed above
as to liability for bona fide advice are
based on the assumption that the lawyer
concerned is simply answering aquestion
posed to him as to the lawfulness of a
formulated scheme, and that in so doing he or she does not step outside a proper
professional role. It is certainly no part of
the professional role of a lawyer to assist the client in the conduct of his business. That is not the purpose of obtaining and
giving professional advice. Of course, a
professional adviser appreciates that the
client wishes the advice for the purposes of his business, and that
sound advice will assist that business. But that does not make
it a purpose of the advice,
What difference does it make, if any,
if the lawyer either devised the course of
conduct or participated in devising it? It is
superficially attractive to say that this has a
different quality about it compared to merely
giving advice as to a formulated scheme. If I
becorrectinmy thesis that the real touchstone
is the proper professional role and
responsibility of the adviser concerned, and if
I am further correct in arguing that clients are
entitled to advice as to the best method of
arranging their affairs so as not to breach the
law, then it is a proper function of lawyers
(and others) to assist clients in doing so. This
can be done by considering the substance of the matter, and then
suggesting a series of steps which would not breach the law.
Where, however, there is evidence aliunde of the actual
existence of such a purpose the question arises as to whether that
would amount to aiding, abetting, counselling or procuring any
offence which is committed. If correct, this would have the
consequence that a professional adviser, giving an opinion
which he knows will be used in this way, runs the risk that if it
is wrong, and an offence is committed, he will be implicated in
that offence.
In conclusion, the words of Street C.J. in R. v. Tighe &
Maher (1926) 26 S .R. (N.S.W.) 94 at 108 are as necessary now
as they were in 1926:
A lawyer should
be able to express
his bona fide
view as to the
lawfulness of the
proposed action
without
fear of criminal
consequences
if it be incorrect. 9
The contrary view is that provided an opinion is given bona
fide it does not matter what the adviser knew or believed would
be done with it. The client is entitled to receive legal advice as
to the lawfulness of proposed actions, and the public policy and
interest which this represents should not be categorised by fine
distinctions as to what the lawyer knew or did not know in the
particular case about the client's proposed use of the opinion. A
lawyer should be able to express his bona fide view as to the
lawfulness of the proposed action without fear of criminal
consequences if it be incorrect,
A "marketing" opinion given to a tax promoter for the
purpose of inducing taxpayers to enter the scheme charged for at
28 -
Bar News, Summer 1988
I
"
"I think therefore that the conviction must be quashed,
but before parting from the case I wish to say this. Although,
in the inception of the transactions which have been under
review, Tighe acted as solicitor for Martin and for his
daughters, he was not their regular solicitor, and he only
acted for them on one or two isolated occasions. In all, or at
all events in nearly all, the transactions which have been
relied upon for the purpose of proving a criminal conspiracy
between him and Maher, he was acting as the solicitor of the
latter. It is expected of course of every solicitor that he shall
act up to proper standards of conduct, that he shall give his
clients sound advice to the best of his ability, and that he i
shall refrain from doing anything likely to mislead a Court
of Justice; but, in the course of his practice he may be called
upon to advise and to act for all manner of clients, good, bad
or indifferent, honest or dishonest, and he is not called upon •
to sit in judgment beforehand upon his client's conduct, nor,
because he does his best for him as a solicitor within proper
I
The journal of the
limits, is he to be charged with being associated with him in
any improper way. In acting for a client, a solicitor is
necessarily associated with him, and is compelled to some
extent to appear as if acting in combination with him. So he
may be, but combination is one thing and improper
combination, amounting to a conspiracy to commit a crime
or a civil wrong, is another thing. An uninstructed jury may
easily fail to draw the necessary distinction between such
combined action as may properly and necessarily be involved
in the relation of solicitor and client, and such acts on the part
of a solicitor, over and above what is required of him by his
duty as a solicitor, as may properly give rise to an inference
of an improper combination. I think, therefore, that it may
be useful to point out the importance, in cases where a
solicitor is charged with entering into an agreement with his
clients which amounts to a criminal conspiracy, of seeing
that the jury are properly instructed as to a solicitor's duty to
his client, and that it is made plain to them that, before a
solicitor can be convicted of conspiring with his client to
commit a wrong, it must be proved that he did things in
combination with him, over and above what his duty as a
solicitor required of him, which lead irresistibly and
conclusively to an inference of guilt." U
Swing Leader *
Boris Kayser was cross-examing a kidnap victim, and
attempting to show that a co-accused was the obvious ringleader.
Kayser: He was subject to violent swings of mood, was he nor?
Witness looks puzzled.
Kayser: If you don't understand my question you only have to
say so.
Dugan S.M.: He might think you are referring to Benny
Goodman.
Melbourne Magistrates' Court,
January, 1982
U
Best Advice *
A man with a number of convictions for exceeding 0.05 was
applying to be allowed to be relicensed:
S.M.: How long since you had your last drink?
Applicant: Two years ago.
S.M.: Was that on medical advice?
Applicant: No, on yours.
Coram Curtain S.M., Cohuna
Magistrates' Court, June, 1981 0
* See Motions and Mentions
SAf
STEPp tvy ltd
Insurance Brokers
I nconporaled in Victoria)
Phone Aidan Stokes on:
959-3344
88 Walker Street, North Sydney, 2060. DX1 0592 North Sydney
NSW Bar Association
Motions and Mentions
Metamorphorsis
From Friday September 30 the legal and professional
publishing company, Methuen LBC has reverted to its former
name of the Law Book Company. This move follows the
company's purchase last year by International Thomas and the
subsequent sale of the General and School Divisions coupled
with an increased commitment to the provisions of information
to the legal and professional community. The company has
adopted a new logo and typeface and a motto "Leaders in Legal
and Professional Publishing Since 1898", to highlight the
company's role in legal publishing as publishers of the
Commonwealth Law Reports and the Australian Law Journal.
U
Death of Irving Younger
The Bar would be sad to know that Professor Irving Younger
died in March 1988 of cancer. Professor Younger visited
Australia last year and lectured the New South Wales Bar. Few
of those who witnessed him on that occasion, or any who were
fortunate enough to see a video of one of his lectures could never
forget the vivid and entertaining way in which he approached the
task of educating his audience on various aspects of the law, in
particularcross-examination. Fortunately, many of those videos
still remain to educate future generations of lawyers. U
Order in the Court
The cartoon which appeared with the article "Trial by Jury"
and the snippets which have appeared scattered throughout dii
edition of Bar News cross-referenced to this column are take
from a book extracted from the Verbatim Column of the Victorian
Bar News entitled "Order in the Court - the Lighter Side of th
Law". From reading it one would think that members of the B
and the judiciary in Victoria spend a lot of their time thinking up
witticisms for inclusion in the Victorian Bar News and, of
course, faithfully reporting same to the editor of that publication
(Oh, that the profession in New South Wales were so humorou
and punctilious! - Ed.)
The book is available in New South Wales through Angu1
and Robertson, Imperial Arcade and Constant Reader - Crows
Nest. It is published by Lothian Publishing Company. U
Obituaries
With deep regret the Association records the names of those
members and ex-members who have died since the last
Annual Report.
The Honourable Sir Richard Blackburn OBE
The Right Honourable Sir Victor Windeyer KBE DSO R.G. Marden Esq.
The Honourable Mr. Justice T. O'L. Reynolds T.J. Martin Esq. Q.C.
M.M. Shepherd Esq.
R. Stewart Esq.
R.A. Adams-Smith Esq.
Changing Roles
The following persons transferred from the Roll of Barristers
to the Roll of Solicitors on Friday, 23rd September 1988:
Shane Boesen
Stephen William Cavanagh
Gary Cleary
Michael John Connell
Peter Ernest Lowry
Christopher John McArdle
Robert Paul McMahon
Geoffrey Vincent Murphy
Mary Anne Peattie
John Colin Perrin
Irene Anne Rusak
Peter John Speirs
Brendan John Whelan
Religious Services
Services to mark the beginning of the Law Term were held as
follows:
On Monday 1 February Red Mass was celebrated in St. Mary's
Basilica. The Celebrant and Preacher was His Grace, The Most
Reverend Edward Clancy, Archbishop of Sydney.
Also on Monday 1 February His Grace, The Most Reverend Sir
John Grindrod, Archbishop of Brisbane and Primate of the
Anglican Church of Australia preached at a Service held in St.
James', Queens Square.
On Saturday 6 February a Law Sabbath Service was held in the
Great Synagogue. The Minister was the Rabbi Raymond Apple.
The journal of the
I
I
Trial by Jury : A Matter of Discretion
Supreme Court building.
In 1988 trial by jury went to the brink ofjudicial abolition
and back. GrahamEllis andRuth McColl look at the controversy
and the Court of Appeal's solution.
Consequential amendments to s.89 of the Supreme Court
Act were debated in the Legislative Assembly on 16th and 23rd
September, 1987. Those debates disclose that, whilst the
amendments were motivated by Peck's case, the discretion
thereby conferred was not to be limited to such cases. The then
Attorney-General, Terry Sheahan, explained:
By Act no. 163 of 1987, effective from 18 November, 1987,
s.89 of the Supreme Court Act was amended and now provides:
"In any proceedings on a common law claim (except
proceedings to which section 88 applies), the Court may
order, despite sections 85, 86 and 87, that all or any issues
of fact be tried without a jury".
"In practice, the right of a party to a common law action to
elect to have a matter tried by jury will continue, but subject to
this new discretion which will allow a Court to direct otherwise.
In exercising this discretion, the Court will be able to have regard
to all relevant circumstances and be able to make a decision
consistent with the needsof justice in each particular case".
In particular he stressed:
"This legislation provides, not for
the abolition of juries but for an
increased discretion for judges to
dispense with juries". (Hansard,
p.4100 emphasis added)
(The corresponding provision in the District Court Act is s.
79A).
The history behind the amendment may be briefly stated.
Faced with aplaintiff suffering
from pleural mesothelioma
alleged to have resulted from
the defendant's negligence in
exposing him to asbestos dust
and fibre, Clarke J. (as he then
was) held that the contested
issues involved a "scientific
investigation" within the then
wording of s.89(1): Peck v.
' '
Email Ltd. (1987) 8 NSWLR
430. Thus, a plaintiff with a
7'
short life expectancy was able
• •
to obtain an earlier hearing via
an application which overcame
the defendant's requisition for
....-.. - a jury. Having ordered that the
issues of fact be tried without a
jury, his Honour added:
I would make this final
observation.
I am
informed that there are a
c& 4-
- . -
Following the introduction
of
the
amended
legislation, a
-
diversity of views rapidly
developed amongst Common Law
. --.-- judges in the Supreme Court and in
the District Court as to what matters
would be considered in applications
to dispense with a jury. Issues
which became unclear included
whether regard may be had to the
...._ general state of the list and matters
common to all jury trials; whether
a judge could dispense with a jury
of his or her own volition and
whether the applicant (usually the
plaintiff) had to show special
circumstances.
.
f
--
7,,
large number of cases
Reprinted with the kind per mission
presently awaiting trial in
Cole J., in Smoie v. Trend
of the Victorian Bar News
which plaintiffs are dying
Laboratories (27 May, 1988 unrep.)
or very ill. In most cases
considered that the defendant no
the defendant has applied
longer had a "right" to trial by jury
for juries. As I have said the pressures of business of the
and that the plaintiff-applicant did not need to show "sufficient
Court make it extremely difficult for the Court to provide
circumstances" to persuade a judge to dispense with the jury.
expeditious jury trials for the concerned parties. It is far
easier to order urgent hearings for trial by a judge alone
After referring to the plethora of judgments of his fellow
given the greater flexibility of this mode of trial and the
Judges which had been given as a result of the "weekly"
judge's ability to adjourn the case from time to time. In these
applications to dispense with ajury brought since the amendment
circumstances there is a need, it seems to me, for judges of
to s.89, the absence of any guidelines from the Court of Appeal
this Court to be given an unfettered discretion to order trial
and the position in England where a practice has developed of a
by judge alone, except in respect of proceedings to which
judge alone hearing all personal injury cases, whether motor
s.88 applies, to accommodate cases in need of an urrent
vehicle or industrial accident, his Honour concluded (p.35):
hearing." (emphasis added)
"In my view, the position which had been reached in
For once the words of the Court were heard beyond the
England by 1964 that in the interests of uniformity, savings
NSW Bar Association
in time, savings in c t to immediate parties, to other
litigants and to the community generally - in short in the
interest of justice generally - juries in civil actions arising
from industrial accidents should be dispensed with except
where special circumstances dictate otherwise, has, in 1988,
been reached in New South Wales".
On the other hand, Yeldham J. in Loranz v. George Morman
(unrep., 8 July, 1988) spoke of the "prima facie right to a jury".
From the judgments of Finlay J. in cases such as Landers v.
McPherson & Davies Shonfitters Ply. Ltd. (unrep., 1 December,
1987) and Grady v. White Industries Limited (unrep., 2 December,
1987) it is clear that his Honour considered that juries should not
be dispensed with, in the absence of consent, unless special
circumstances were shown.
In Croke v. Haines (unreported 8 April
1988) Carruthers J., took into account the
general state of the list and did his own
calculations based upon figures provided to
him by the Senior Deputy Registrar, Courts
and calculated that, at the current rate, it would
take 34 year to finish the list as it then stood at
present. He concluded the hearing of an action
in the Common Law Division by a jury was a
"luxury".
the Court can exercise the said discretion upon any of
the matters (a) to (e) above without there being any
other factors;
(g) the Court should only exercise the said discretion
upon a personal or particular prejudice, injustice or circumstance
to which the general litigant is not exposed or by which the
general litigant is not similarly affected?
That question was stated in three cases: Whalan v. Blue
Mountains City Council, Galla gher v. Slim Dusty Enterprises
Pty. Limited & Anor. and O'Sullivan v. R. Booth Ply. Limited.
Those cases came to be heard on 15 July, 1988 in the Court of
Appeal on the same day as the case of Pambula District Hospital
v. Herriman, an appeal from a decision of Cole J. ordering that
the proceedings be heard without a jury and the Estate of
Williams & Anor. v. Marshall - also a case
involving the exercise of the discretion under
Section 89(1).
b...the hearing
of an action
in the
Common Lam
Division
by a jury was
a "luxury".5
In Beim v, Rice Growers Co-Onerative
Mills Ltd. (unreported 7 December 1987)
Mathews J. noted that if the current state of the
Court lists were to be taken into account in
each case then it would be hard to envisage a
case in which a civil jury would be retained:
That being so, it may be argued that considering the state of the
Court lists would achieve that which Parliament did not intend,
namely the removal of juries in all personal injuries cases.
Given the differences of opinion among the first instance
judges of the Supreme Court and six applications to dispense
with juries in the Applications list on Friday 8 July, Yeldham J.
stated a question for the Court of Appeal pursuant to Part 12 Rule
2(1)(b) of the SupremeCourtRules asking the Court to determine:
"Whether in relation to the exercise of discretion under
Section 89(1) [of the Supreme Court Act]:
(a)
the Court can take into account the state of the list;
(b)
the Court can take into account the prospects of being
heard due to the state of the list;
(c)
the Court can take into account general factors affecting
a country circuit;
(e) the Court can take into account delay, settlement
prospects and increase in costs;
(f)
The decision in all of these matters
delivered on 5 August, 1988. Pambula is the main
was
decision. In it Kirby P. and SamuelsJ.A. (Mahoney
J.A. dissenting) held that in exercising the
discretion in s.89(1) the judge is required to
consider the circumstances of the particular case
and not general matters such as the duration and
the expense ofj ury trials andpmcedural difficulties
inherent in such matters. In so finding their
9
Honours recognised that s.89, even as amended,
acknowledged the significance to be accorded to
a litigant's decision to elect to have a case tried by
jury. They distinguished the English position as based upon a
policy decision (Kirby P. at 16) or legislation reposing an "even
and unweighted discretion" in the judge as opposed to s.89
which recognises an accrued statutory right to a jury (Samuels
J.A. at 10). Samuels J.A. said (pp.13-15):
"The Parliament has decreed that juries are to be retained
and that means warts and all. The presence of the warts
cannot be used to destroy the picture. They are part of the
picture. Accordingly, in order to make good an application
to dispense with a jury it is not enough to point to the
supposed deficiencies ofjury trials. It is necessary to show
grounds which are particular to the case in hand. These may
of course be produced by the pressure of singular
circumstances upon the general character of ajury trial. For
example, the state of the jury list, if it entails a delay likely
to exceed a plaintiff's life expectancy, would be a matter
involving the particular application of a general condition.
But the argument (however correct in fact) that to dispense
with a jury or two at the top of the list would accelerate
hearings at the bottom, would not...
"In approaching the exercise of discretion under s.89 the
judge must be satisfied that there are circumstances particular
to the case in hand which require an order to be made in order
that justice maybe done between the parties. In this context,
The journal of the
I
I think that the doing of justice will usually involve the
protection of legitimate expectations. Thejudge is not to act
as a court administrator, seeking to clear the list as
expeditiously as possible and seizing upon the removal of
jury trial as a means of doing so, without regard to the
interests involved in the particular case."
In his dissenting decision, Mahoney J.A. held that in
exercising the power given by s.89, it may be appropriate for a
judge to refer to guidelines or to a general practice appropriate
to the kind of case or the occasion, secondly that it may, in the
exercise of a particular discretion, be appropriate that it be
exercised so as to achieve consistency of judicial adjudication
and thirdly, that care should be taken to ensure that the use of
guidelines did not convert the discretion into an inflexible or
almost inflexible rule. (pp.10-13). It was not, however,
appropriate under s.89 for a general ruling to be given that all
cases are to be tried with or without a jury.
All of the members of the Court of Appeal were clearly
acutely aware of the problem of court delays and the correlation
between such delays and jury trials.
In addition, Kirby P. and Samuels J.A. recognised that
defendants often requisitioned juries because they were perceived
to give lower verdicts than judges and also because the delays
which existed in trials presented obvious advantages for
underwriters, sometimes inducing settlements for less than full
value because of the frustrations of delay (see Samuels J.A. at
15).
Both Kirby P. and Samuels J.A. expressed sympathy with
the position which had led judges to dispense with juries upon
grounds which reflected their frustration with the serious delays
in the court list which had caused hardship and injustice to
litigants. They were, however, of the view that it was a matter
for Parliament to legislate in such a way as to give judges a wider
discretion in respect to trial by jury than was provided in s.89.
The remaining cases which had been heard on 15 July by the
court were disposed of on the basis of the principles enunciated
in Pambula with the result that the questions asked were
answered:
"(a) - (e) : Not as such, except as such matters are shown to
have consequences particular to the proceedings in
which the application is made.
(t) No.
(g) Yes."
Gifts
The following gifts were presented to the Association since the
last Annual Report:
Ian Pearson's oil painting "Hunters and Collectors" in memory
of the late Mr. Justice T. O'L. Reynolds by
Mr. Justice J.B. Kearney
W.J. Holt, Q.C.
Mr. Justice J.S. Cripps
J.D. Heydon, Q.C.
Mr. Justice P.A. McInerney
J.R. Sackar, Q.C.
Mr. Justice W.M. Gummow
P.G. Sheldon
Master G.S. Sharpe
R.P. Hennessy
P.J. Kenny, Q.C.
T.P. Lonergan
F.J. Gormly Q.C.
J. Poulos
R.P. Meagher, Q.C.
R.R. Bartlett
L.M. Morris, Q.C.
C.C. Branson
P.R. Capelin, Q.C.
S.M. Hamman
W.H. Nicholas, Q.C.
M.F. McDermott
F. Kaufman's "The Admissibility of Confessions", 3rd editon,
by P. McEwen.
Thomson's "The Judges" by B.W. Walker.
Marr's "Barwick"; Ellis' "Lachlan Macquarie, His Life
Adventures and Times"; Tennant's "Evatt,Politics and Justice";
SirJohn Kerr's "MattersForiudgment, an Autobiography"; The
Honourable E.G. Whitlam's "The Whitlam Government 19721975". All donated by the Barristers' Clerks Association of
New South Wales. Li
VELCo
TO
'I
It is gratifying to see a problem which affected many cases
in the Common Law Division and the District Court being so
expeditiously resolved by the Court of Appeal. It may well be,
however, that the position now established by the decision in
Pambula is temporary and that a political response to delays in
the Common Law Division, both in Sydney and in the Circuit
Courts, can be expected from a Government anxious to "clear the
backlog". Li
NSW Bar Association
• You mean a solicitor has to employ
iou, plus a junior, to talk for him?
Now that's what I ca//job creation.
I/U*WJiM#Ii
They bring out the point that the word draws no useful distinction
and serves no useful purpose.
Lord Justice Staughton ofthe Queen'sBenchDivisioninEngland
continues what appears to be the thankless and unrewarding
task of persuading the English Bar to move into the twentieth
century - "language-wise".
Our legislators must share some of the responsibility. In the
House of Commons QCs are honourable and learned members;
but in the House of Lords it is only the Lord Chancellor and
present orpastLaw Officers,judges of the Superior Courts of the
United Kingdom and Lords of Appeal in Ordinary who are noble
and "learned". Thus Mr. Peter Rees QC was learned, but Lord
Rees QC is not.
Fifteen months ago I suggested a New Year's resolution for
those who draft affidavits - not to write anything "verily". Some
adopted it, but like most New Year's resolutions it has not
proved to be of lasting effect. Prospective immigrants to this
country must find the use of the term in affidavits not the least
puzzling aspect of our immigration procedure.
"As he then was" is another irritating phrase, referring to a
barrister orjudge who has since risen to a higher sphere. Readers
who already know that will not find the information useful; those
who do not already know it will not find it of much interest. But
I would not discourage the habit of
z
referring to judges by the name which
- /
they subsequently acquired on
promotion
to the peerage (eg Bigham
,
J as Lord Mersey, or Brett U as Lord
/
Esher). The reader has to workout for
Oo,,q himself who is meant - unless the law
reporter is kind enough to add a
th
footnote providing e answer.
This year's first target is "learned". Why do barristers refer
to an opponent as their learnedfriend, thus exposing themselves
to an accusation of untruthfulness on two grounds? Would not
"my friend" do? Again it may not
be true; but it serves as a reminder
that advocates should be polite
towards each other if they can. It
is distracting for a judge to have to
quell angry abuse at the bar, instead
of getting on with other more
important aspects of a trial.
When counsel for the
prosecution opens a case in the
Crown Court he first introduces
his "learned friend" for the defence.
What do the jury make of that? I
suspect that it merely confirms an
impression already formed, that
those who work in the law live in
a remote enclave where ordinary
human behaviour and common
sense have little place.
•"/
N
BUT 1)107 CAN'T Q p
ONLY
Use of the word is not encouraged by the capricious basis on
which, technically, it is earned. Henry Cecil in Brief to Counsel
summed it up well "...Some practitioners think that they ought to
call everyone 'learned'. It has been said that counsel once
referred to the 'learned usher', but this may be apocryphal."
In the occasional dull moment during an appeal from
arbitrators, I have reminded myself (and others) which members
of the London Maritime Arbitrators Association are "learned"
and which are not. These reflections are not entirely frivolous.
q
I' '
And whatof "learned"judges,
\
I
Lords Justices at al? Apart from the occasional use by way of irony
("the 'learned' judge in the court
below completely overlooked an
elementary rule of law"), this usage adds nothing of any value to
legal proceedings. The judgments of Lord Denning, conspicuous
for their economy of language, rarely referred to counsel or a
judge as learned; and they were none the worse for that.
I
s I
IT'LL
c(,r
/
BA(N P/oQ0
TBi'
My next proposal is that those who
do not understand Latin should use it
with considerable care. The plural of
"forum" is "fora" ,although "forums"
could be thought acceptable; but you
cannot convert"quorum" into"quora",
as an eminent silk (now a Lord Justice
of Appeal) tried to do some years ago.
Nor is there much to be said for the
advertisement that once appeared for
"one of the finest vade meca on the
market". The word "addendae" does
have a meaning in Latin - women who
ought to be added; it does not mean
lists of additional items. Readers had
better work out th e meaning of
"agendae" for themselves.
Some people seem to have an extraordinary addiction to the
word "said" in pleadings and affidavits. Its only purpose is to
distinguish the noun that follows from others of like kind, by
referring back to what has been said already. The worst abuse is
to use the word when there is nothing to refer back to, because
nothing has already been said. Such idiocy is mercifully rare.
Mannerisms in speech or gesture afflict us all, and can be
distracting. Like the scorer at a cricket match, I sometimes feel
tempted to note how many times an hour one barrister says "in
my respectful submission". If we repeated ourselves like that at
home, our spouse or children would lose no time in saying so.
But a court of law is no place for menti oning such trivia.
The journal of th e
I
I
I
I
I
1
I understand that students at the Council of Legal Education
are shown a video recording of their early efforts at advocacy in
the practical exercises. Could not the same service be provided
for established barristers and silks? As Burns put it"O wad some
pow'r the giftie gie us. To see oursels as others see us! It wad
frae mony a blunder free us, And foolish notion."
Like a medical check-up every few years, it would be
valuable to have an opportunity to see and listen to oneself in
court. The recording would be entrusted to the subject only, to
make such use of as he pleased. In-service education is now a
popular topic. This might be a start. Perhaps a similar service
should be provided for judges, by the Judicial Studies Board. Of
course, as Plato wrote, when one is already perfect any change
is for the worse. But it is to be hoped that not many would turn
the offer down on that ground. Li
L)
17
L
Intrepid Scot
Unpersuaded
One of the Attorney-Generals of Scotland, known as the
Lord Advocate appeared in the House of Lords with four
propositions in support of his appeal. The court was presided
over by Lord Diplock who, some think, thought Counsel were
superfluous and probably also the fellow court judges who sat
with him and that one couldfind out the real point by reading the
papers beforehand. From doing the latter he had concluded that
the fourth point was the best. He said to the LordAdvocate who
was developing his first point: "Lord Advocate, we are very
interested in your fourth point". "We are very grateful to your
Lordship" said the Scotsman in return and continued with his
first point. A little while later Lord Diplock said: "Lord
Advocate, we thinkyourfourthpoint is a pa rticularly good one"
am very heartened to hear what yourLordship has to say" he
said, and continued with his first point.
Counsel, in the course of a plea for a drug offender,
stated that his client was repentant, that a crushing sentence
would be inappropriate and that the Judge should be
confident that he would not sin again.
Eventually Lord Diplock could stand it no longer and he
said: "Lord Advocate, we are inclined to think, of course, we
keep an open mind on these matters, but we are inclined to think
that if you win this case, and again we have an open mind, we
think you will win it on the fourth point."
The LordAdvocate said: "Are yourLordships inviting me
to departfrom mypre -stated order". "Well" saidLordDiplock:
"Yes, yes, we are Lord Advocate." "Then the invitation is
declined." U
NSW Bar Association
*
His Honour: There is no way of really assessing it.
Counsel: You can only judge that after the sentence is served,
Your Honour.
His Honour: And you never know.
Counsel: Well, you know if they come back, Your Honour.
His Honour: The judge never knows or rarely knows.
Counsel: Sometimes they do, Your Honour. Sometimes they
are unfortunate enough to come back before the same judge.
His Honour: In ten years they have not come back before
me.
Counsel: I was just wondering, Your Honour, whether they
were all still in.
His Honour: Thank you. Well, that must a very encouraging
note to sit down on so far as the accused is concerned.
His Honour sentenced the accused to 12 years with a
minimum of nine years.
November, 1981
* See Motions and Mentions U
This Sporting Life
I
NEW SOUTH WALES BAR CRICKET
On the 20th March, 1988 a New South Wales Bar
Eleven travelled to Melbourne to play in the annual New
South Wales, Victorian Bar Cricket Game. The 50 over
game was played at the magnificent Fitzroy/Doncaster
District Cricket Ground.
Prior to departure a number of the "Old Guards" were
forced to withdraw. Clarrie Stevens (discovered on last
season's tour to England/Ireland) Denis Benson, David
Wilkins and Malcolm Holmes presented themselves for
selection.
After a pleasant flight to Melbourne, the tean found
itself booked into "Fawity Towers" along St. Kilda Road.
Needless to say, the wives and girlfriends were not happy!
Stirling Harriman had thrust upon himself the mantle of
captaincy and without any committee decision elected to bat
on what was a wet wicket. A team talk was held and these
immortal utterances were recorded:"This is the ground wher Neil Harvey learnt his cricket.
We will show Gilard (the Victorian Skipper) we've got the
same make-up as the Harvey brothers", whose photograph
Hamman happened to be looking at as he spoke,
"Remember discipline play straight, no flashy stuff!"
The two openers were out, playing wild shots and
Hamman was Out for 6 attempting a square cut some
distance outside his off stump when the score was 3/18.
Fortunately Guy Reynolds (26) and Peter Hastings (23)
were able to halt the collapse.
A seventh wicket stand of 80 by David Wilkins (41) and
Peter Maiden (40) gave some respectability to the innings,
however, the score of 150 was always vulnerable.
After a lengthy lunch the wicket had improved
considerably and was by then perfect for batting. The
bowlers, namely Hamman, King, Naughtin, Stevens, Benson
and Laughton bowled quietly but without success. Only
Laughton (2/5) was able to enjoy success. A number of the
bowlers commented that the Victorian opening batsman, a
chap by the name of Ian Dallas, who scored 88 not out not
only looked like, batted like and even sounded like the
former Australian opening batsman Kepler Wessels. It
appears that the Victorian Bar has been able to acquire some
of the recruiting skills of the Australian Cricket Board/
Kerry Packer alliance, i;n their single-minded determination
to win at any cost!
Once again we were feted to an excellent meal at the
Victorian Bar Common Room. The following thy some
respect was regained when a number of the members were
able to beat their Victorian counterparts at tennis at Gillard
Q.C. 's home at Brighton. Unfortunately his swimming pool
was not long enough to allow competitive swimming but an
attempt was made by some members of the team who will
remain nameless.
The New South Wales/Queensland game ws due to be
held on the first weekend in April. The game was cancelled
before the Queenslanders came down, however, the dinner
in their honour was still held at the University/Schools Club.
This happened to coincide with President Handley's party in
the adjoining room. As ever an enjoyable night was had by
all. The Queenslanders management volunteered that in
next year's game they would be able to put on as a team one
current Sheffield Shield player, namely Andrew Courtice
and one former Shield player, Roger Traves as well as a
number of current grade players.
In recentyears the fortunes of theNew South Wales Bar
cricket team have not enjoyed the success of earlier years. It
has been suggested that there needs to be an injection of a
number of younger players who are either currently playing
or recently retired from competitive cricket. Recent social
games between various chambers has resulted in a number
of players being "discovered", the most recent being David
Wilkins and Denis Benson. It has been suggested that there
be an annual "probables" versus "possibles" game to
encourage players to come forward before being selected
for inter-state service. Would those who are interested or
who know reluctant cricketers kindly contact Larry King,
Peter Maiden, or Stirling Hamman to put their or other
names forward. Li P. Maiden
Sticky Wicket
In a recent case in the Privy Council Lord Templeman,
mindful that the merits of the case were quite contrary to the
interests of the Senior Counsel who was addressing him,
bowled him some very insidious in-swingers during the
course of his address with fairly lethal consequences. When
the silk sat down, exhausted, the presiding Lord said to his
junior: "Mr. Robinson, do you wish to follow?" To which
the cheerful answer came: "Not without a helmet, my
Lord".
The journal of the

Summer 1988 - NSW Bar Association

Transcription

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